When Is Hiring Someone "Harboring"?

Excerpted from The Criminal Lawyer's Guide to Immigration Law: Questions and Answers, Second Edition

By Robert James McWhirter

§ When Is Hiring Someone "Harboring?"
An employer is an "alien harborer" if he knowingly hires at least 10 aliens during any 12-month period, "with actual knowledge" that the aliens are undocumented or otherwise unauthorized to work. Activities that can get an employer in trouble include: continuing to knowingly employ illegal aliens; failing to complete forms for unauthorized workers; refusing admittance to ICE agents without warrants; or aiding aliens to leave the workplace without detection.

§ What Are The Penalties For Alien Harboring?
Under 8 U.S.C. § 1324(a)(1)(B)(ii), an employer can receive a fine and/or imprisonment of not more than five years. Federal Sentencing Guideline § 2L1.1 would control the actual sentence.

§ What Is The Mens Rea For Alien Harboring?
To prove harboring, the government must prove that the employer had actual knowledge that the aliens were unauthorized at the time of hire. The mens rea for the other crimes mentioned in this chapter only require the government to established a "pattern or practice" of hiring illegal aliens.

§ What About Repeatedly Hiring Undocumented Aliens?
Title 8 U.S.C. § 1324(a) provides for misdemeanor criminal penalties for employers who have a "pattern or practice" of hiring aliens. Immigration Service regulations define "pattern or practice" as a regular, repeated, or intentional activity excluding isolated, sporadic, or accidental acts. 8 C.F.R. § 274a.1(k). The law also punishes second and third violations of this offense.

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