In some circumstances, individuals who conspire with or aid or abet others in committing these offenses can be charged as well.  In addition, charges can also be brought for attempting these prohibited acts depending on the situation.  Employers can be guilty of these offenses if they had actual knowledge of employee’s immigration status or, depending on the situation, if they “recklessly disregarded” the fact that that person was an alien.  Reckless disregard has sometimes been construed to mean circumstances in which a person is aware of, but consciously disregards facts and circumstances that that person was an alien. 

What are the potential penalties for “bringing and harboring” unauthorized immigrants? 

For anyone bringing someone in illegally, the penalty is up to 10 years imprisonment and a fine of up to $250,000, or both. 

For transporting, concealing, harboring, shielding from detection or encouraging or inducing, the penalty is up to 5 years and a fine of up to $250,000, or both.  If a person is found guilty of any of these offenses and it was done “for the purpose of commercial or private financial gain,” the maximum prison sentence rises to 10 years. 

For aiding and abetting any of these kinds of offenses, the maximum prison sentence is 5 years and a fine of  up to $250,000, or both. 

For conspiring to commit any of these offenses, the maximum prison sentence is 10 years imprisonment and a fine of up to $250,000, or both. 

If anyone is seriously injured or anyone’s life is endangered, the maximum jail sentence will increase to 20 years.  If someone is killed, the penalty can be death or up to life in prison. 

If a person is found guilty of bringing or attempting to bring into the U.S. an alien who has not received prior official authorization to enter or reside in the U.S., the maximum penalty is 1 year.  But if that act is committed “for the purpose of commercial advantage or private financial gain,” a sentence of 3 to 10 years for a first or second violation may be imposed and 5 to 15 years for subsequent violations. 

Maximum jail times for each of these offenses can be increased by another 10 years if the offense was part of an ongoing commercial organization, immigrants were transported in groups of ten or more, the aliens were transported in a very dangerous manner, or the aliens presented a life threatening health risk to people in the U.S. 

Punishment can also include the forfeiture of the proceeds of the violation.

Hiring 10 or More Unauthorized Immigrants 

What is the crime of hiring more than 10 unauthorized immigrants? 

The Immigration and Nationality Act makes it a crime to hire at least 10 individuals with actual knowledge that the individuals are unauthorized aliens illegally brought into the United States. 

What is the penalty for hiring more than 10 unauthorized immigrants?

Violators can be punished by up to 5 years of imprisonment, a fine and forfeiture of the proceeds of the violation. 

Crimes Involving False Statements 

What crimes involving false statements have been used to charge employers in cases involving unauthorized immigrants? 

It is a crime to knowingly and willfully make a materially false statement or representation in any matter within the jurisdiction of any branch of the United States government.  It is also a crime to make or use in such matters a document knowing that the document contains any materially false statement.  Additionally, it is a crime to falsify, conceal or cover up by any trick, scheme or device a material fact in such matters.  A statement has been considered material if it has the tendency to influence or is capable of influencing a government entity.  Though this prohibition is not uniquely applied to instances of unauthorized immigrants, it has been used by the government to charge employers in connection with information communicated or presented to the government. 

What is the penalty for making false statements? 

Violators can be imprisoned for up to 5 years and fined up to $250,000, or both.  

Document Fraud and  Identity Theft

What fraud and identity theft offenses potentially apply to employers of unauthorized immigrants? 

It is a federal crime to (a) knowingly and without lawful authority produce an identification document, (b) knowingly transfer such a document knowing it was stolen or produced without lawful authority, (c) possess such a document with intent that it will be used to defraud the United States, and (d) possess an identification document of the United States knowing that the document was stolen or produced without lawful authority.  It is also a crime to knowingly transfer, possess or use without lawful authority another person’s identification with the intent to violate federal law or commit a felony under state or local law or to aid and abet such wrongdoing.  The prohibition applies to documents issued by the United States or, if the offense involves or affects interstate commerce, documents issued by a state or political subdivision of a state. 

Employers in several cases around the country have been accused of violating these provisions, including circumstances in which employers assisted employees in obtaining false documents.  Such employers can be viewed as assisting workers in making it appear that an employee is authorized. 

It should be noted that states are also tightening document fraud and identity theft rules and employers could face prosecution under these rules as well.

What penalties may be imposed on employees convicted of document fraud and identity theft? 

Employers violating these rules may be imprisoned for up to 5 years and fined up to $250,000, or both.  The potential penalty increases up to 15 years if the offense involved a fraudulent identification document that is a federal document (e.g., a passport), a birth certificate, driver’s license or personal identification card, the production or transfer of 5 or more documents, or the transfer, possession or use of a document with the intent to violate federal law or commit a felony under state law and the offense resulted in obtaining anything of value worth $1000 or more. 

Mail Fraud and Wire Fraud 

What is the crime of mail fraud? 

It is a crime for a person to devise, or participate in, a scheme to defraud, or to obtain money or property by false representations, if the person does so with the intent to defraud and if for the purpose of carrying out or attempting to carry out the scheme or misrepresentation the person used or caused another person to use the United States Mails or a commercial interstate carrier (e.g., Federal Express).  The item mailed or sent by interstate carrier need not itself be fraudulent as long as the use of the mails or interstate carrier furthered the wrongdoing. 

What is the crime of wire fraud? 

It is a crime for a person to devise, or participate in, a scheme to defraud, or to obtain money or property by false representations, if the person does so with the intent to defraud and if for the purpose of carrying out or attempting to carry out the scheme or misrepresentation the person transmitted or caused another person to transmit by wire, radio or television in interstate commerce some communication.  As with mail fraud, the communication sent by interstate wire need not itself be fraudulent as long as the use of an interstate wire transmission furthered the wrongdoing.

What are the potential penalties for mail fraud and wire fraud? 

Violators of either the mail fraud or wire fraud statutes can be imprisoned for up to 20 years and fined up to $250,000, or both.  If a violation of these statutes affects a financial institution, the penalties can be increased up to 30 years imprisonment and a $1,000,000 fine, or both. 

Money Laundering 

What is the crime of money laundering and how does it apply to employers? 

The federal crime of money laundering punishes a person who conducts a financial transaction with property that represents the proceeds of “specified unlawful activity” with the intent to promote the carrying on of “specified unlawful activity.”  It is also a crime to conduct a financial transaction with property that represents the proceeds of “specified unlawful activity” knowing that the transaction was deigned to conceal or disguise the nature, the location, the source, the ownership or the control of the proceeds of specified unlawful activity.  Money laundering also involves a person knowingly engaging in a monetary transaction with property derived from “specified unlawful activity” and having a value of more than $10,000.  “Specified unlawful activity” includes the crimes of harboring unauthorized aliens, employing ten or more unauthorized aliens, mail fraud and wire fraud.  Thus, for example, if an employer were to knowingly employ ten or more unauthorized aliens and such employment generated funds, the employer could be guilty of money laundering if the employer engaged in a financial transaction with those funds with the intent to carry on the crime of employing unauthorized aliens or in order to hide the source of the funds.  Similarly, a employer could be charged with money laundering if that employer engaged in a monetary transaction involving more than $10,000 derived from employing ten or more unauthorized aliens. 

The government has been aggressively pressing money laundering charges in enforcement cases under a theory that employers who knowingly employ unauthorized immigrants are often using the money gained from such illegal employment to further a criminal enterprise that continues to hire illegally such employees. 

What are the penalties for money laundering? 

Depending on which money laundering statute is charged violators can be imprisoned for up to 10 years and fined up to $250,000 or both, or imprisoned for up to 20 years and fined up to $500,000 or twice the value of the property involved in the transaction.   Additionally, the government can seek forfeiture of any property involved in the offense or any property traceable to such property.

Fraud and Misuse of Visas and Permits 

What is the crime of fraud and misuse of visa and permits? 

It is a federal crime to use or attempt to use, possess, obtain, accept or receive a forged immigrant or nonimmigrant visa, permit, boarder crossing card, alien registration receipt card or other document prescribed for entry into the U.S. or for employment in the U.S., knowing that  that the document is forged, altered or obtained by fraud.   It is also a federal crime to, under oath, knowingly subscribe as true any false statement about a material fact in any application or other document required by the immigration laws or regulations or to knowingly present such a document which contains a false statement.  Also criminal would be for a person to use an identification document, knowing or having reason to know, that the document was not lawfully issued to the possessor or that the document is false, for the purpose of meeting the employee verification requirements under the Immigration and Nationality Act.

What are the penalties for fraud and misuse of visa and permits? 

Violators of these provisions can be fined up to $250,000, or, depending on which provision is involved, imprisoned for up to 5 years or 15 years, or both.   

Misuse of Social Security Number 

What is “misuse of a social security number”? 

It is unlawful for any person to falsely represent, with intent to deceive, that a social security number assigned to one person is, in fact, assigned to another person.  It is also a crime to use a social security number obtained based on submitting false information to the Commissioner of Social Security.  

What is the penalty for misuse of a social security number? 

Anyone found to have unlawfully misused a social security number can be fined up to $250,000 or imprisoned for up to 5 years, or both.

RICO 

What is RICO? 

The Racketeer Influenced and Corrupt Organizations Act (“RICO”) was originally enacted to address organized crime, though it has been used in a wide variety of circumstances to punish repeated criminal acts typically carried out through an entity, organization or group.  Thus, it is criminal for any person employed by or associated with an enterprise to conduct or participate in the conduct of the affairs of that enterprise through a pattern of racketeering activity.  An “enterprise” can include a partnership, a corporation, an association or other legal entity or even a group of associated individuals.  A “pattern of racketeering activity” typically involves two or more violations of certain identified laws.  Among the offenses that can lead to RICO charges would be repeated acts of harboring unauthorized aliens, employing ten or more unauthorized aliens, mail fraud and wire fraud. 

What are the penalties for violation of the RICO Act? 

Persons convicted of criminal RICO can be fined up to $250,000, imprisoned for up to 20 years, and subject to civil forfeiture  of property.

Other Considerations 

What types of penalties are typically being imposed on employers convicted in connection with unauthorized immigrants? 

While the statutes under which employers are charged usually set a maximum term of incarceration, judges imposing sentence have greater flexibility and sentences are almost always considerably below the maximum.  A recent sampling of prison terms imposed reflects sentences ranging from 2 months to 5 years, with an average sentence in cases in which a prison term was actually imposed of 2 years.  Terms of imprisonment are often followed by a term of supervised release which is similar to probation.  Some cases, however, have involved probation rather than imprisonment.  A recent sampling of terms of probation in cases in which probation was imposed rather than imprisonment reflects terms from 1 to 5 years, with an average of 2 years.  Forfeiture of assets and fines are also being imposed.  There have been instances of fines as high as $175,000 and of forfeiture of assets as high as $12,000,000. 

What is “seizure and forfeiture”? 

Employers found to be liable for certain criminal offenses can be subject to having seized any assets that are deemed to be the fruits of such wrongdoing.  While IRCA fines typically have not amounted to more than a hundred thousand dollars, seized assets in harboring and money laundering cases have involved millions of dollars. 

Is it more likely ICE will pursue a worksite enforcement charge or a criminal investigation? 

While criminal prosecutions were rare in the past, over the past 2 years, ICE has clearly moved to favoring criminal charges over administrative fines alone.  The numbers reflect this shift.  The General Accounting Office reports that the number of notices of intent to fine dropped from 417 in 1999 to 3 in 2004, while the number of criminal arrests rose from 25 in fiscal year 2002 to 863 in fiscal year 2007.  ICE also obtained more than $31,000,000 in fines in 2007.

What should you do if an Immigration and Customs Enforcement agent arrives at your place of business in connection with an investigation of immigration violations? 

There is no one-size-fits-all answer to this question and to some extent the answer depends on whether the investigator is seeking to conduct an on-site inspection immediately, where your I-9 forms are kept, how careful your company has been with respect to I-9 compliance, whether the ICE officer has a Notice of Inspection and Subpoena or a search warrant and other factors. The best approach is to consult with immigration counsel and develop a set of protocols for reacting to such a visit or raid ahead of time. Employers and their counsel will need to balance a variety of considerations including antagonizing an ICE officer and unnecessarily leading to more hostile treatment versus protecting the employer’s rights.  

But there are some basic items to put on the protocol list in most cases including