Most employers know it is against the law to hire or continue to employ an unauthorized worker in the United States.  However, company owners, executives and managers continue to be charged with a myriad of immigration-related offenses, including “bringing in and harboring certain aliens.”  Although harboring carries the most severe criminal penalties, it is also one of the most misunderstood immigration-related offenses.  So, just what does harboring include?

• transporting, moving, concealing, harboring or shielding from detection an alien with knowing or reckless disregard of the fact that the alien has come to or remains in the United States in violation of law.  8 U.S.C. § 1324.
• hiring illegal aliens, securing apartments for them, paying for rent and utilities, providing transportation to and from jobs, and maintaining counterfeit immigration documents.  U.S. v. Tipton, 518 F.3d 591 (8th Cir. 2008).
• providing shelter, obtaining employment, providing transportation to and from work, and arranging sham marriages for illegal aliens.  U.S. v. Lopez, 521 F.2d 437 (2d Cir. 1975). 
• failing to maintain Form I-9s for illegal aliens, advising illegal aliens where they can purchase fake documents and not including illegal aliens on payroll records.  U.S. v. Ye, 588 F.3d 411 (7th Cir. 2009). 
• falsifying information on the Form I-9 for illegal aliens, knowingly hiring illegal aliens who presented counterfeit documents and arranging for illegal aliens to fraudulently obtain security badges by falsely certifying information.  O’Hare Airport Staffing Agency
• providing housing, utilities and meals for illegal aliens.  Hi-Tech Trucking
• in response to the receipt of a Social Security No-Match letter (see May 16, 2011 Blog), advising illegal aliens to change their social security numbers in order to continue working at the company. Agriprocessors

What does harboring not include?

• merely giving an illegal alien advice on how to avoid attracting the attention of immigration authorities.  U.S. v. Ozcelik, 527 F.3d 88 (3d Cir. 2008).

The Circuits are split as to whether the conduct must “substantially facilitate an alien’s remaining in the United States” in order to be considered harboring.  According to the Third Circuit, harboring includes conduct that tends “to substantially facilitate an alien’s remaining in the United States illegally” and to prevent the authorities from detecting his or her unlawful presence.  United States v. Ozcelik, 527 F.3d 88 (3d Cir. 2008).  According to the Seventh Circuit, the Second, Fifth and Eighth Circuits have “explicitly” or “implicitly” taken the same position as the Third.  However, the Seventh Circuit has held that the relevant federal law does not require a specific quantum or degree of assistance to an illegal alien in order to constitute concealing, harboring or shielding.  U.S. v. Ye, 588 F.3d 411 (7th Cir. 2009).  “Congress could not have been clearer: it said that concealing, harboring, or shielding from detection an alien is unlawful conduct, regardless of how effective a defendant’s efforts to help the alien might tend to be.”  Id. 

Employers must focus on implementing, reviewing and auditing their immigration compliance programs, including their Form I-9 process.  Employers should also ensure that additional services such as housing, transportation, meals, and utilities are not provided to employees who are not authorized to work in the United States.

I’d like to thank Ashley B. Matthews, Summer Associate, for her contribution to this blog entry.