Enforcement

Overview. Immigration enforcement is the set of powers the federal government uses to decide who may enter the United States, to police compliance once a person is here, and to compel departure when the law is not satisfied. Most of it is civil rather than criminal, and most of it is administered by executive agencies rather than by the ordinary federal courts. Two groups have a direct stake in how it works: the foreign national whose presence and activities are regulated, and the employer, whose hiring and recordkeeping obligations form a separate scheme with penalties of its own.

Which agencies do what. Enforcement authority is divided within the Department of Homeland Security. U.S. Customs and Border Protection, 6 U.S.C. 211, controls admission at ports of entry and patrols the border. U.S. Immigration and Customs Enforcement, 6 U.S.C. 252, conducts interior investigations, worksite enforcement, detention and removal. U.S. Citizenship and Immigration Services, 6 U.S.C. 271, adjudicates benefits rather than enforcing, but its decisions often determine whether a person has status at all.

The adjudicators and the labor regulators. The immigration courts are not part of the enforcement department. The Executive Office for Immigration Review, which contains the immigration judges and the Board of Immigration Appeals, sits within the Department of Justice, 8 C.F.R. 1003.0. The Department of Justice also enforces the anti-discrimination provision at 8 U.S.C. 1324b, and the Department of Labor enforces the wage and working-condition attestations attached to certain employment-based classifications, 20 C.F.R. 655.800.

Enforcement at the border and at ports of entry. A person arriving in the United States is treated as an applicant for admission and is subject to inspection, 8 U.S.C. 1225(a). Where an arriving person is found inadmissible for misrepresentation or for lack of valid entry documents, the statute directs removal without a hearing unless the person indicates an intention to apply for asylum or a fear of persecution, 8 U.S.C. 1225(b)(1)(A). That summary procedure may also be applied to persons encountered inland who cannot show two years of continuous physical presence, and the statute makes the scope of that designation a matter of sole and unreviewable discretion, modifiable at any time, 8 U.S.C. 1225(b)(1)(A)(iii).

Enforcement away from the border. Immigration officers may question a person about the right to remain, and may arrest without a warrant where there is reason to believe the person is in violation and is likely to escape before a warrant can be obtained, 8 U.S.C. 1357(a). Within a reasonable distance of an external boundary, defined by regulation as one hundred air miles, officers may board and search conveyances, 8 U.S.C. 1357(a)(3) and 8 C.F.R. 287.1(a)(2). Regulation limits these powers: a brief investigative detention requires reasonable suspicion based on specific articulable facts, 8 C.F.R. 287.8(b). State and local officers may perform immigration functions only under a written agreement, 8 U.S.C. 1357(g), and a detainer asks another agency to hold a person for no more than forty-eight hours, excluding weekends and holidays, 8 C.F.R. 287.7(d).

Two different legal categories. Which charges are available depends on whether the person was lawfully admitted. Grounds of inadmissibility, 8 U.S.C. 1182(a), reach those seeking admission and those present without having been admitted; grounds of deportability, 8 U.S.C. 1227(a), reach those who were admitted, and cover inadmissibility at entry, violation of status, criminal offenses, failure to register, security grounds and unlawful voting. Either family may be charged as the case requires, 8 U.S.C. 1229a(a)(2), and the distinction matters because the burden of proof is allocated differently.

Status is not the same thing as the document. A visa is a travel document that permits a person to seek admission; it is not the status itself, and its expiration date is not the period of authorized stay, which is fixed at admission and recorded separately. Failure to maintain the status in which a person was admitted, or to comply with its conditions, is an independent ground of deportability, 8 U.S.C. 1227(a)(1)(C)(i), and can arise while every document in the person’s possession still appears valid. Working without authorization, or outside the terms of the classification granted, is a status violation even where the employer has made no verification error.

Removal proceedings. A case ordinarily begins with a charging document setting out the allegations and the grounds relied on, 8 U.S.C. 1229(a), and is heard by an immigration judge under 8 U.S.C. 1229a, which the statute makes the sole and exclusive procedure for determining admission or removal unless another provision says otherwise. A person seeking admission bears the burden of showing entitlement clearly and beyond doubt, 8 U.S.C. 1229a(c)(2)(A), while for a person who was admitted the government must prove deportability by clear and convincing evidence, 8 U.S.C. 1229a(c)(3)(A). Appeals lie to the Board of Immigration Appeals, 8 C.F.R. 1003.1, and judicial review is available only within the limits of 8 U.S.C. 1252.

Detention and release. A person may be arrested on a warrant and detained while removal is decided, and may be released on bond or conditional parole, though release does not itself confer permission to work, 8 U.S.C. 1226(a). Detention is mandatory for statutory categories that include specified criminal and security grounds and that extend to certain persons charged with or arrested for particular offenses rather than convicted of them, 8 U.S.C. 1226(c). Once an order is final, 8 U.S.C. 1231(a) governs and sets a removal period of ninety days.

What follows a departure or a removal order. Unlawful presence can bar a later return: more than one hundred eighty days but less than a year, followed by departure before proceedings begin, produces a three-year bar, and a year or more produces a ten-year bar, 8 U.S.C. 1182(a)(9)(B). A person who accrues more than a year of unlawful presence in the aggregate, or who has been ordered removed, and who then enters without being admitted, is inadmissible under 8 U.S.C. 1182(a)(9)(C), subject to a narrow exception after ten years abroad. A prior order can be reinstated without a new hearing and without eligibility for relief, 8 U.S.C. 1231(a)(5). Voluntary departure under 8 U.S.C. 1229c avoids a removal order, but failing to leave in time carries a civil penalty and a bar on several forms of relief.

Criminal provisions are a separate track. Entering at an undesignated time or place, eluding inspection, or obtaining entry by willful misrepresentation is a federal crime, 8 U.S.C. 1325, and reentry after removal is a crime under 8 U.S.C. 1326. Bringing in, transporting, harboring or encouraging unlawful entry or residence is punishable under 8 U.S.C. 1324, and document fraud for immigration purposes is reached by 8 U.S.C. 1324c. A prosecution proceeds independently of any removal case, and a conviction may also supply a ground of deportability, 8 U.S.C. 1227(a)(2).

Registration, documents and address reporting. Federal law requires registration and fingerprinting, 8 U.S.C. 1302, implemented at 8 C.F.R. part 264. The regulation prescribes a general registration form for those not already registered and lists the common arrival, admission and status documents that themselves serve as evidence of registration, 8 C.F.R. 264.1. A registered person aged eighteen or over must carry the registration document, 8 U.S.C. 1304(e). A change of address must be reported in writing within ten days, 8 U.S.C. 1305(a), and failure to do so is a ground of deportability unless reasonably excusable or not willful, 8 U.S.C. 1227(a)(3)(A). These duties are easily overlooked and are enforced independently of any other question about status.

The employer’s core duty. It is unlawful to hire, or to recruit or refer for a fee, a worker known to lack authorization for the employment in question, and separately unlawful to hire anyone without completing the statutory verification, 8 U.S.C. 1324a(a)(1); continuing to employ a worker after learning that authorization is absent is also unlawful, 8 U.S.C. 1324a(a)(2). Verification is performed on Form I-9, with the employer examining the documentation within three business days of hire, 8 C.F.R. 274a.2(b)(1)(ii), or under an alternative examination procedure where one has been authorized, 8 C.F.R. 274a.2(b)(1)(ix). Forms must be kept for three years after the hire or one year after employment ends, whichever is later, 8 U.S.C. 1324a(b)(3).

Inspections, penalties and the good-faith defense. Retained forms must be produced for inspection, and the employer is entitled to at least three business days of notice beforehand, 8 C.F.R. 274a.2(b)(2)(ii). Civil money penalties are provided by 8 U.S.C. 1324a(e) and 8 C.F.R. 274a.10, and a pattern or practice of knowing violations carries criminal exposure, 8 U.S.C. 1324a(f)(1). Good-faith compliance with the verification requirements is an affirmative defense to a knowing-hire charge, 8 U.S.C. 1324a(a)(3), which is the practical reason to treat the paperwork as a substantive obligation. The section preempts state and local sanctions on employers but expressly leaves licensing and similar laws untouched, 8 U.S.C. 1324a(h)(2).

Over-compliance is also unlawful. The mirror image of the hiring prohibition is 8 U.S.C. 1324b, which makes discrimination on the basis of citizenship status or national origin an unfair immigration-related employment practice in hiring, discharge, and recruitment or referral for a fee. Demanding more or different documents than the rules require, or refusing documents that reasonably appear genuine on their face, is itself a violation, 8 U.S.C. 1324b(a)(6). An employer that tries to reduce enforcement risk by asking extra proof of workers who seem foreign simply trades one liability for another.

Electronic confirmation. The electronic employment eligibility confirmation program rests on the pilot-program provisions enacted as a note to 8 U.S.C. 1324a. Participation is voluntary as a matter of federal law, subject to statutory exceptions for certain federal entities, and it supplements rather than replaces the Form I-9. Good-faith participation carries a rebuttable presumption that the employer has not knowingly hired an unauthorized worker. Federal contract clauses and state licensing statutes can nonetheless make enrollment a practical condition of doing business, which is the space the preemption provision leaves open to the states.

Labor-condition enforcement. Employers sponsoring workers in certain temporary classifications make binding attestations about wages and working conditions. The Wage and Hour Division carries out the Secretary of Labor’s investigative and enforcement functions under 8 U.S.C. 1182(n) and (t), and may investigate on a complaint or on its own initiative, entering and inspecting places and records, 20 C.F.R. 655.800. This is a distinct channel from anything the Department of Homeland Security does with the underlying petition.

Border security is treated separately. The inspection, surveillance and entry-control side of enforcement, with its own questions about screening technology and the physical border, is taken up on the child page Border Security rather than here.

Priorities shift faster than the rules. The statutory grounds, the removal procedure and the employer verification framework are comparatively stable, while charging priorities, the reach of summary removal designations, detention practice, worksite enforcement activity and agency guidance move with each administration and with pending litigation. Two risks should be kept apart in any assessment: an employer’s liability for verification and recordkeeping failures is not the same as a worker’s exposure to removal, and either can exist without the other.

Related pages. Border and entry controls are covered on Border Security. Procedural topics that often arise alongside an enforcement question, including travel documents and permission to return, are collected under Other Matters. Questions about a specific enforcement exposure may be raised through the contact page.