On Tuesday, September 26, 2006 three officers of Immigration Customs and Enforcement (ICE) appeared at an immigration seminar warning that failure to comply the law could result in fines, jail time and even civil suits for unfair competition. This seminar, sponsored by the Beverly Hills Bar Association, was hosted by Immigration Committee Chair, Robert DuPont who introduced the ICE officers and speakers Richard Wilner of Wilner & O'Reilly as well as attorney Jack Schaedel of Schaedel & Associates.
Officers Louis Rodi, Bruce Kamie and Timothy Raymond from the Critical Infrastructure unit of ICE described how their unit guaranty's the safety of airports, mass transit, chemical plants, nuclear power plants, water reservoirs, ports from terrorist threats. Officer Raymond described recent enforcement efforts to examining worker records, including Operation Safe Airways, affecting ten airports and 32 employees, Operation Safe-Water involving Los Angeles Water and Power and resulting in detention of five affecting a total of 9 employees.
In addition to "critical infrastructure" ICE reviews I-9 employment eligibility verification forms and any attached documents such as photo identification, birth certificates, employment authorization or green cards for all employers.
Employees who make a false claim to citizenship in an I-9 form commit a serious offense which can render the individual ineligible for any future immigration benefit and deportable. The false claim to citizenship is considered a felony criminal offense under 18 USC 1015(e).
Officer Bruce Kamie described a case in which an employer instructed employees without proof of employment authorization to obtain false documents. This manager's conduct exposed this individual and his superiors to charges of harboring unlawful aliens (8 U.S.C. §1324) unlawful employment of aliens (8 U.S.C. §1324(a)), fraud and misuse of documents (18 U.S.C. §1546) and conspiracy to commit these crimes under (18 U.S. C. §371).
Attorneys Richard Wilner and Jack Schaedel described I-9 documentation and the responsibility of the employer to address an employee's lack of employment authorization once the manager or company owner has knowledge of a problem with their employment authorization.
One red flag for employers is the issuance of a "mis-match letter" from the department of Social Security. Officer Kamie noted that Department of Social Security can bring to the employer's attention that the employee name does not match the social security number in department records. This however is not grounds for firing the employee, and not a government declaration that the employee does not have work authorization.
Instead the employer needs to review employment documents and determine whether there was a transposition of numbers in filing the social security number, whether there was a legal name change as with a marriage, name change upon naturalization, or where a name was "Americanized" for co-workers.
Attorney Jack Schaedel also helped outline what is permissible with regard to employee hiring, stating that a general inquiry as to work authorization can be made prior to hiring but asking for documents or demanding I-9 compliance prior to hiring is considered document abuse. In other words employers may not obtain employment documents which may be used to screen out non-citizens or persons from certain countries.
Officer Bruce Kamie also described fines for violations ranging from $100 to $1100 per violation for I-9 paperwork errors and $250 to $2,500 for knowingly hiring persons not authorized to work. He stated fees are more severe for larger companies with trained employees dedicated to enforcing I-9 compliance. Officer Lodi stressed that the goal of ICE is not to collect fines but to encourage employer compliance with the laws. Nonetheless, ICE powers are substantial including "Blackie's" warrants allowing detention of employees, Rule 41 search warrants allowing property as well as wire-taps.
Attorney Robert Dupont, host and moderator for this event concluded that I-9 compliance is an extremely serious matter for employers and with multiple errors and violations can add up to serious fines, criminal and civil charges based on unfair competition laws. In addition employees need to be very careful in filling out an I-9, this is a USCIS document and false claims to citizenship are actionable and with a few important exceptions create a permanent bar for immigration benefits.
Robert J. DuPont is an attorney with the law firm of Wilner & O'Reilly, managing its Beverly Hills Office. Mr. DuPont Graduated from Yale University and USC Law School and is admitted to the California Supreme Court, and Federal District Courts in the Central and Northern Districts of California as well as the 9th Circuit Court of Appeals.