Federal authorities have begun using forfeiture laws and seizing the assets of businesses employing illegal aliens. In a departure from the Bush-administration emphasis on worksite raids, U.S. Immigration and Customs Enforcement (ICE) announced on July 7, 2009, it had recently issued Notices of Inspection (NOIs) to 652 businesses nationwide.
On Nov. 19, 2009, ICE announced the issuance of an additional 1,000 NOIs to employers across the United States “associated with critical infrastructure.” ICE stated that the 1,000 entities that received NOIs were selected based on “investigative leads and intelligence” and because of the business’ “connection to public safety and national security.” While this might sound like an effort aimed at preventing terrorism, at least some of the notices were directed to agricultural and other companies employing low-skill labor.
Under its new strategy, ICE began focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers. These notices are intended to alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations. ICE has stated it believes these inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws, and has indicated its increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce. Immigration officials stated the notices are the “first step in ICE’s long-term strategy to address and deter illegal employment.”
Additional Risks for Business Owners
Not only has the U.S. government changed its approach to investigating employment eligibility compliance laws, it has stepped up the penalties it seeks when it finds violations. Federal authorities have begun taking the unusual step of seeking the forfeiture of an actual business (and/or its assets) that is suspected of employing illegal aliens. At the French Gourmet, a San Diego-area bakery, both its president and a manager were charged in April, 2010, with conspiring to engage in a pattern or practice of hiring and continuing to employ unauthorized workers (a misdemeanor) in addition to 14 felony counts, including making false statements and shielding undocumented alien employees from detection.
According to the indictment, the owner and managers certified on the firm’s Employment Verification Forms (I-9) that the documents they examined appeared to be genuine, and to the best of the their knowledge, the employees listed on the I-9 were eligible to work in the United States. They then placed the workers on the company’s payroll and paid them by paycheck until they received “No Match” letters from the Social Security Administration (SSA) advising that the Social Security numbers being used by the employees did not match the names of the rightful owners of those numbers. The indictment goes on to allege that after receiving the “No Match” letters, the company conspired to pay the undocumented employees in cash until the workers produced a new set of employment documents with different Social Security numbers.
In May 2008, ICE agents executed a federal search warrant at The French Gourmet and arrested 18 undocumented workers. During the searches, ICE agents seized employee and payroll records as evidence in the criminal case.
“Employers have a responsibility for maintaining the integrity of their workforce,” said Mike Carney, acting special agent in charge for ICE Office of Investigations in San Diego. “This indictment shows ICE’s commitment to holding businesses accountable when they repeatedly ignore immigration laws as it relates to their workforce. The goal of our enforcement effort is two-fold, first to reduce the demand for illegal employment and, second, to protect job opportunities for the nation’s lawful workforce.”
ICE has reported that in fiscal year 2009, worksite investigations resulted in a total of 410 criminal arrests, including 114 management personnel.
Other Recent ICE Actions
• Missouri Roofing Company: On February 3, 2010, the owner of a Bolivar, Missouri, roofing company was sentenced in federal court to forfeit more than $180,000 and pay a $36,000 fine for knowingly hiring illegal aliens following a worksite enforcement investigation conducted by ICE. Russell D. Taylor pleaded guilty Sept. 14, 2009, to knowingly hiring, contracting and subcontracting to hire illegal aliens from August 2006 through April 2008.
The court ordered Taylor to forfeit to the government $185,363, which represented the amount of proceeds obtained as a result of the offense, and to pay a fine of $36,000, representing a $3,000 fine for each of the 12 illegal aliens who worked under company supervision. A company supervisor also pleaded guilty in a separate but related case to harboring illegal aliens. Taylor was also sentenced to serve five years of probation, implement an employment-compliance plan and pay the $185,363 forfeiture amount in monthly installments during the first 30 months of probation.
• Maryland Restaurant: On Feb. 16, 2010, the owner of a Hanover, Md., Chinese restaurant was arrested and charged with transporting, employing and harboring illegal aliens. The criminal complaint alleges that, between January 2009 and Feb. 4, 2010, Yen Wan Cheng knowingly hired aliens who were not authorized to work in the United States, transported the aliens to their jobs, and harbored them in residences she provided. According to the criminal complaint, five aliens were specifically identified during the investigation as working at the restaurant and residing in a home Cheng owns in Columbia, Md.
She faces a maximum sentence of three years in prison for employing illegal aliens and five years in prison each for transporting illegal aliens, harboring aliens and harboring aliens for financial gain.
• Nevada Electronics Firm: On March 4, 2010, the owner of a Reno, Nev., electronics manufacturing company was indicted by a federal grand jury on six counts of encouraging illegal aliens to reside in the United States and aiding and abetting.
According to the indictment, between March 2005 and May 2009, Hamid Ali Zaidi, owner of Vital Systems Corp., allegedly encouraged six illegal aliens to work at his company and therefore to reside in the United States, knowing that such residence was in violation of federal law. If convicted, Zaidi faces up to five years in prison and a $250,000 fine on each count.
Under Citizenship and Immigration Services’ (USCIS) regulations, employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. Form I-9 requires employers to review and record the individual’s identity and employment eligibility document(s), and to determine whether the document(s) reasonably appear to be genuine as well as related to the individual.
An additional method for employers to verify employment eligibility is through the use of the E-Verify program. This is an online system that accesses Homeland Security and Social Security databases and can provide almost instant confirmation of a worker’s ability to work in the United States. However, the USCIS has announced it intends to begin data mining the information it obtains through E-Verify to identify patterns of misuse and fraudulent documentation.
When an Employer Receives an NOI
Although the following is not intended to be legal advice, the first step any employer should take when receiving an NOI is to contact its immigration counsel and carefully review the Notice. Some NOIs are accompanied by subpoenas requesting specific personnel and payroll documents, and it is very important to determine whether the inspecting agency is ICE or the U.S. Department of Labor (DOL). Only ICE can initiate enforcement proceedings. The employer should also assess whether the government is amenable to limiting its initial request for documentation. While there are other critical steps an employer may need to take they will depend on the specific circumstances of each situation.
James G. Aldrich is an attorney with Dickinson Wright PLLC in Bloomfield Hills, Mich. He is a frequent writer/publisher and presenter on immigration topics and the editor of the Immigration Law Book published in 2006 by the Illinois Institute of Continuing Legal Education. His practice focuses on the corporate aspects of U.S. immigration law including the transfer of foreign workers to the United States and counseling employers on immigration-related issues.
He can be reached at firstname.lastname@example.org.