There is no doubt that immigration-related enforcement against employers has dramatically increased in recent years. The U.S. Department of Homeland Security (DHS) and its principal investigative arm, U.S. Immigration and Customs Enforcement (ICE), consider employers the “immigration magnet,” and to combat illegal immigration, they are focusing on the magnet.

Given the flood of recent enforcement actions, all employers across the country, regardless of whether they employ foreign workers, should be on alert for immigration-related inspections and enforcement actions, — especially employers associated with “critical infrastructure” or “key resources” sectors, which include the food industry.

ICE has stated that investigations involving “national security, public safety or those associated with our critical infrastructure and key resources sectors” will receive top enforcement priority. ICE has also said that it gives higher priority to investigations into unauthorized workers employed at “sensitive sites and critical infrastructure facilities” — such as airports, chemical plants and defense facilities — as they “could pose serious homeland security threats.”

What are the critical infrastructure and key resources sectors?

The Patriot Act defines “critical infrastructure” as the systems and assets “so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.” 42 USC § 5195c(e). Not surprisingly, DHS has identified the food, water and agriculture industries as being among 18 industries that compose critical infrastructure and key resources sectors.

What are the potential penalties?

The penalties for immigration-related violations can be painful and can include fines, debarment, asset forfeiture, prison time, corporate monitoring and indirect damage from lost productivity, attorneys’ fees and negative publicity. The loss of workers and other indirect damage can be great enough to cause the company’s demise. For example, after its 2008 immigration raid and the arrest of nearly 400 workers, Agriprocessors was forced to shut down and eventually filed for bankruptcy. Other charges and additional penalties can be tacked on to immigration violations for crimes like tax evasion, money laundering, bank fraud and false statements that stem from what began as an immigration-related investigation.

Recent penalties for immigration violations confirm that DHS is targeting employers in the food industry. In fact, some of the highest immigration penalties imposed to date, as noted below, are for companies in the food industry.

Recent Penalties for Immigration Violations in the Food Industry

Employers in the Food Industry who have not yet received a Form I-9 inspection should take the time now to prepare by consulting experienced immigration counsel to conduct a Form I-9 audit, review and revise their immigration compliance policies and procedures, analyze participation in E-Verify, and train those with immigration compliance responsibilities.