The New Face Of Immigration Workforce Enforcement
Before 1986, there was no law on the books that made it illegal for an employer to hire an undocumented worker. Employers were at liberty to offer employment to any candidate, without the necessity of verifying their eligibility to work. In 1986, Congress passed the Immigration Reform and Control Act of 1986, which brought about serious penalties for employers who employed undocumented workers. These penalties were rarely imposed.
Today the situation is vastly different. In 2003, the U.S. Immigration and Customs Enforcement (ICE) agency was established as the investigative division of the Department of Homeland Security. In April 2006, ICE commenced a new scheme designed to identify and penalize employers hiring or retaining unauthorized workers. ICE's primary objective was no longer to provide education and guidance to employers. Rather, the new plan was to go after the employers and punish them to the fullest extent of the law.
According to its own statistics, between September 30, 2007 and August 30, 2008, ICE was responsible for 1,037 criminal arrests at various worksites throughout the United States. Of those, 123 involved owners, managers, supervisors or human resource employees who were charged with a wide gambit of immigration violations, including harboring, knowingly hiring illegal aliens, and money laundering. Other criminal charges pertained to identity theft and Social Security fraud. Additionally, ICE conducted over 4700 administrative arrests and assessed over $31 million in criminal fines, restitutions, and civil judgments in response to its worksite-related investigations.
These numbers are staggering and they paint a rather grim picture for employers whose compliance with the immigration laws may be less than stellar. To makes things worse, no relief appears to be in sight. In fact, not a week goes by without the news of yet another ICE raid or investigation. The following are somber examples:
- October 7, 2008 - ICE arrested 331 undocumented aliens during search of a South Carolina Poultry Processing Plant
- October 1, 2008 - a Houston-based waste collection company agreed to pay $3 million in fines for immigration violations
- September 29, 2008 - El Pollo Rico restaurant owners were sentenced for money laundering and harboring illegal aliens to 15 months in prison and ordered to forfeit $7.2 million in cash, properties, vehicles, and other assets
- September 10, 2008 - ICE arrested current and former company supervisor and 51 other workers at the Palm Springs Baking Company
- September 3, 2008 - 23 illegal alien workers arrested in California at the Sun Valley Group
- August 26, 2008 - 595 arrested at a Mississippi transformer manufacturing facility
- July 28, 2008 - 13 illegal aliens working at Waco Manufacturing in North Little Rock, Arkansas arrested at their workplace
As evident by the above examples, ICE agents have been targeting employers from all walks of life - from big companies to small "mom and pop" shops. Civil and criminal statutes have been invoked to administer harsh and severe penalties. Business owners and managers have been charged with serious felonies, including harboring and money laundering, which carry a potential sentence up to 10 years in prison. Furthermore, a person who has been convicted of a federal felony can have his or her assets seized pursuant to the Criminal Asset Forfeiture statutes.
However before an ICE raid occurs, there are frequently warning signs, which frequently go by unnoticed. They may include a random visit from a local enforcement representative who is claiming to look for a particular person. Sometimes a lone ICE officer will come by under a false pretext, trying to "scope" the worksite. Employers who frequently hire aliens not authorized to work, hire mainly those who are related or friends with the existing employees, or purposely fail to comply with the Form I-9 system are at risk, as are those who fail to respond to "No-Match" letters from the Social Security Administration. Employers who allow their employees change their identities and produce new and different documents without a further investigation are also on the hook. Employers should be also vigilant about an increased number of community complaints that there many foreign workers around who do not speak English.
In light of the aggressive ICE tactics and diligent prosecution, it is incumbent upon employers to put in place procedures and protocols, which will protect them from harsh civil and criminal consequences. These should include the following:
- Employers should comply with the I-9 requirements (applicable to all new hires after November 6, 1986) and keep relevant I-9 documentation for at least 3 years after the date the new employee commences work
- Employers should strive to properly fill out I-9 Forms and avoid simple mistakes such as not signing or dating the form, leaving information blank on the form, accepting documents that are not among those required for the employee's identity and employment eligibility
- Respond to Social Security "Employer Correction Requests" or "No-Match" letters. This will require employers to verify their own records and asking employees to resolve any Social Security discrepancies on their own. See www.socialsecurity.gov for instructions on proper use of the Social Security Number Verification System
- Employers should not ignore information and tips indicating that employees are not eligible to work
- Enroll in the online E-Verify Program sponsored by the USCIS, which will assist in determining employment eligibility for all new employees
- Enroll in a voluntary IMAGE program. IMAGE, the ICE Mutual Agreement between Government and Employers, is another tool for employers to minimize risks of being charged with immigration violations. Information regarding IMAGE can be found at www.ice.gov/image
- Implement an effective compliance protocol within your company, including proper document collection and retention
- Employers should frequently conduct internal audits of their I-9 compliance efforts
Finally, employers should consider hiring a reputable immigration attorney who can navigate them through the complicated I-9 compliance process and educate them on the procedures preceding and following an ICE investigation. Our office has assisted many corporations and small business in their I-9 compliance programs. Should you need our professional services, please contact us at 800-352-7034 or consult our website www.wilneroreilly.com.