For many employers caught between a rock and a hard-place as to what to do about their undocumented workers, the risk of continuing to employ them and/or assisting them in their efforts to avoid deportation, is increasingly exposing employers to civil penalties and even criminal prosecution. In our last C-G posting, we reported on a Kentucky case involving a landlord accused of “harboring.” In light of that decision and the confusion surrounding what “harboring” is, we felt that it would be instructive to readers to visit this issue.

To begin with, it is illegal to engage in a “pattern or practice” of knowingly hiring and employing illegal aliens. The crime of unlawful hiring and/or employment carries with it a fine of not more than $3,000 per undocumented alien involved, and up to a 6-month jail term for the entire illegal activity. The reader should note that an employer’s failure to fill out I-9 forms completely or properly can translate into a separate series of civil and criminal penalties. 

By contrast, “harboring” requires that a person not only knowingly hire and/or employ undocumented aliens, but intends to help them avoid detection by law enforcement personnel. The maximum penalty for harboring is five years jail time for each alien harbored, and in the case where the crime is committed for commercial advantage, the penalty is up to 10 years jail time per harboring charge. 

The distinction between “harboring” and not “harboring” can be very subtle, i.e. in the Kentucky case (see our July 9, 2008 Post), the U.S. District Court held that renting to illegal aliens in and of itself was not “harboring,” unless it could have been shown beyond a reasonable doubt that in renting the premises to the undocumented persons, the landlord did so with the intent of shielding such persons from the law. Similarly, knowing that an employee is undocumented does not necessarily mean that the employer is “harboring,” unless the employer has taken some action to shield the employee from immigration enforcement by directly, or even indirectly, facilitating the employee’s illegal stay in the U.S., i.e. aids and abets the employee’s obtaining false documents like a social security card or passport. An employer who refers undocumented workers to third parties for the purposes of “straightening out” their papers, can also be subject to prosecution for “attempting, aiding and abetting and conspiring to harbor.”      

Under either statute, to convict a person for illegal employment or harboring, the Government must show that the defendant knowingly hired, employed or harbored an illegal alien, or engaged in such conduct in “reckless disregard” of the fact that the alien was illegal. It is because of this “reckless disregard” standard that great care needs to be paid to efforts to address social security no-match letters. An employer who receives no-match letters should confer with competent counsel about establishing procedures designed to minimize the employer’s risk of being accused of ignoring evidence of unauthorized employment.  

In short, employers tempted to hire undocumented workers and/or assist them in avoiding deportation and removal need to consider the criminal and civil penalties to which such conduct exposes them. An employer who learns that a segment of its workforce is undocumented  may not be able to avoid conflict with the authorities by simply turning a blind eye to the employees’ lack of documentation.   The answer is in businesses devising policies to minimize risks to employers if and when the authorities come calling, and in actively lobbying for changes in the immigration laws to take account of the difficult labor environment many businesses face in industries where it has been difficult to attract and employ legalized labor.

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A client recently inquired of C-G concerning language it proposed for a lease making the lease terminable were the tenants later found to have violated the immigration laws. Because of the anti-discrimination provisions promulgated pursuant to the 1986 Immigration Reform and Control Act, we did not think such a termination provision was advisable. Nevertheless, the situation highlighted a potential problem confronted by landlords who lease to persons whom they suspect may be undocumented, i.e. could the landlord become subject to prosecution on the basis of “harboring” illegal aliens?  Unfortunately, as it happened, the question has not been just theoretical, but in certain jurisdictions has been played out. Today, the American Immigration Lawyers’ Association posted on its website a very telling article about such a criminal prosecution of a landlord, which happily resulted in his being cleared of all charges, but which underscores the more threatening enforcement environment we are in. The article is set forth in full, as follows:   

Cite as “AILA InfoNet Doc. No. 08070968 (posted Jul. 9, 2008)”

On 06/27/08, William Jerry Hadden, a Kentucky landlord who faced 62 charges in US District Court of renting apartments without verifying the immigration status of the future tenants, was found not guilty on all charges.

The trial is thought to be the first time the federal government has prosecuted a landlord for renting to undocumented immigrants, defense attorneys said in court filings.

Hadden’s defense attorneys steadfastly maintained his innocence and claimed that the federal government was twisting the intent of harboring laws, which they say were intended to target human traffickers or employers who are trying to hide their work forces. They further noted that it is not illegal to rent to undocumented immigrants, and Hadden therefore had no legal obligation to check any tenant’s immigration status.

The court agreed with the defense and ruled that there had to be evidence that the defendant intended to violate the immigration laws by concealing or hiding tenants.