The images tend to be memorable and camera-friendly - federal agents stage a well-publicized bust on a jobsite and cart off hundreds of undocumented workers. Today, however, the U.S. Department of Justice and U.S. Customs and Immigration Enforcement (ICE) have shifted their focus away from undocumented workers and are targeting the employers who hire them, often through audits and lawsuits. This became painfully evident to Russell D. Taylor, operator of a Missouri based roofing company. Taylor pled guilty to knowingly hiring, contracting, and sub-contracting to hire illegal aliens from August 2006 through April 2008. In September 2009, he was sentenced to five months probation, required to forfeit $185,363 to the government and pay an additional $36,000 fine, and further instructed to implement an employment-compliance plan.
Addressing the case, Michael Spinella, resident agent in charge of the ICE Office of Investigations in Springfield, Mo., said, “employers in all industries and locations must comply with the nation’s immigration laws if we are to have an effective immigration enforcement strategy in the United States. ICE is creating a culture of compliance among businesses by leveling both criminal and civil fines against employers who egregiously violate immigration laws.”
The shift in enforcement started in earnest in April 2009, when the Department of Homeland Security issued updated worksite enforcement guidances, emphasizing that ICE would specifically focus on dangerous criminal aliens and employers who knowingly hire illegal workers. That month, speaking before the House Appropriations Committee Subcommittee on Homeland Security, Marcy M. Forman, ICE’s director of office of investigations, testified that the agency increased fines for organizations caught hiring illegal workers. “We expect that the increased use of the administrative fines process will result in meaningful penalties for those who engage in the employment of unauthorized workers,” said Forman.
The following statistics reflect the change:
• ICE penalties from worksite enforcement inspections increased to $5,300,000 in fiscal year 2010, up from $1,033,291 in fiscal year 2009.
• ICE criminally charged a record-breaking 180 owners, employers, managers and/or supervisors in fiscal year 2010, up from 135 in fiscal year 2008 and 114 in fiscal year 2009.
• ICE conducted more than 2,200 I-9 audits in fiscal year 2010, up from more than 1,400 in fiscal year 2009.
• ICE debarred 97 business and 49 individuals in fiscal year 2010, up from 30 and 53, respectively, in fiscal year 2009.
“ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces,” said ICE Assistant Secretary John Morton in November 2009. “We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules.” Every employer should be prepared for the time when the feds may come knocking on the door.
What to Do NowMore than ever, it is important for companies to ensure that all of the i’s are dotted and t’s are crossed when it comes to employee paperwork. By law, all employers are required “to verify the identity and employment eligibility of all individuals hired in the United States,” according to ICE. This is done through the Employment Eligibility Verification Form I-9, and ICE has identified form I-9 audits as its most important administrative tool in building criminal cases and bringing employers into compliance with the law.
On the five-page form, employers must examine employment eligibility and identity documents that an employee presents in order to determine whether they “reasonably appear to be genuine,” then record the document information on the Form I-9. The form requires employers to testify under the threat of perjury that to the best of their knowledge, the employees are authorized to work in the United States.
Employers must retain I-9s for three years after the date of hire or for one year after termination, whichever date is later. Employers need to be sure all I-9 forms are properly maintained, logically organized, and easily accessible since ICE and other federal agencies can demand to see the forms and other related documents.
If they haven’t already, employers need to develop training programs for hiring managers, human resources personnel and anyone else in the company who is responsible for completing I-9 forms. After training, those responsible for completing the forms should know how to properly fill them out, understand which documents are considered acceptable and be comfortable determining whether documents reasonably appear to be genuine. Whenever possible, employers should limit the number of staff authorized to complete I-9 forms to ensure consistency and reduce the need for training. Organizations should also periodically conduct internal audits in order to find any weaknesses in the system before the federal government does. By randomly pulling I-9s and reviewing them for accuracy, employers can determine whether the forms are being properly completed and filed.
When the Feds Show UpWhen it comes to ensuring the legal status of all employees, the best strategy right now may be to hope for the best but prepare for the worst. Along with reviewing training and spot-checking I-9 forms, employers need to develop an action plan about what to do when someone from ICE visits.
First, designate someone to serve as the point person for any interactions with ICE agents. This person should receive specific training on how to respond appropriately to any questions or requests for information. This person should also understand the importance of immediately contacting the company’s in-house counsel or outside attorneys as soon as anyone from ICE makes contact with the organization. Everyone in the company should have the name and cell phone number of the company representative so that person can be reached immediately, any time of the day or night.
ICE officials do not need a search warrant or subpoena to review I-9 forms and related documents. However, the agency must give a three-day notice in order to look over the records. If ICE officials show up without notice and request to review records, employers can, and generally should, request the time to make the paperwork available.
Front-office staff and those who may have initial contact with agents should not allow enforcement agents to investigate the site until the point person or company attorneys have arrived, unless the agents have a warrant. No matter how upsetting the circumstances, employees should be coached about the importance of maintaining a professional and calm attitude when interacting with government agents.
ICE inspectors generally ask the same kinds of questions when they arrive at an employer’s site or headquarters for an I-9 audit, so prepare employees for what they might expect. Agents are usually looking to see if the information on I-9s is accurate and matches government records. They will often ask to speak directly with foreign workers and company officials. It is extremely important that everyone who speaks with government representatives does not feel pressured to provide answers they are not 100 percent sure of; if an employee accidentally misspeaks, the company may open itself to a more vigorous investigation.
Working with legal counsel, try to narrow the amount of information that agents are seeking. Ask if records can be delivered, rather than turned over on the spot. As much as possible, make and retain copies of all the documents that are handed over, and be sure to keep a record of everything the government receives.
It is a different matter from a routine audit when ICE comes with a search warrant and the intention of seizing records and interrogating employees. If the company representative is not on-site, another employee should stay with the investigators throughout the search until the representative and legal counsel arrive.
Employers do not have to answer questions during a criminal investigation and, while they cannot interfere with the investigation, they do not have to compel employees to speak with agency officials. Other than requesting a copy of the search warrant, the best thing to do is to immediately contact legal counsel to get professional advice on what steps to take next.