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January-February 2012

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BLOGOSPHERE POSTED BY Christine Mehfoud Immigration Chatter Around the Web 'Harboring' May Be Easier Than You Think 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. M 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 USC ยง1324. * 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 I-9 forms for illegal aliens, advising illegal aliens where they can purchase fake documents and excluding illegal aliens from payroll records. U.S. v. Ye, 588 F.3d 411 (7th Cir. 2009). * Falsifying information on I-9 forms 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.1 * Providing housing, utilities, and meals for illegal aliens.2 advising illegal aliens to change their Social Security numbers to continue working at the company.4 * In response to the receipt of a Social Security No-Match letter,3 ost employers know it is illegal to hire or continue to employ an unauthorized worker in the United States. However, company What Does Harboring Not Include? The circuit courts are split as to whether the conduct TO LEARN MORE AILA's Guide to Worksite Enforcement and Corporate Compliance must "substantially facilitate an alien's remaining in the United States" in order to be considered harboring. According to the U.S. Court of Appeals for the Third Circuit, 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), is not harboring. The court ruled that 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. But 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 I-9 process. Employers also should ensure that they do not provide additional services, such as hous- ing, transportation, meals, and utilities, to employees who are not authorized to work in the United States. Christine Mehfoud is a lawyer with McGuireWoods LLP, and maintains a blog on immigration enforcement issues via Subject to Inquiry. The author's views do not necessarily represent the views of AILA nor do they constitute legal advice or representation. 1 U.S. Citizenship and Immigration Services (USCIS) Press Release, "O'Hare Airport temporary staffing employees sentenced for harboring illegal aliens who were given access to secure areas; Assisted illegal workers in obtaining unauthorized airport security badges" (Sept. 30, 2009), AILA InfoNet Doc. No. 09100566. 2 USCIS Press Release, "Virginia business owners sentenced to 18 months for harboring illegal aliens, forfeit $1.2 million" (Nov. 23, 2010), AILA InfoNet Doc. No. 10112970. 3 C. Mehfoud, "They're Back ... Social Security No-Match Letters Are Making the Rounds Again" (May 16, 2011). 4 USCIS Press Release, "Agriprocessors supervisor sentenced to 23 months in prison" (Mar. 4, 2009), AILA InfoNet Doc. No. 09030960. JANUARY/FEBRUARY 2012 9

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