The ICE Storm

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What employers need to know, no matter how small they are, about employer compliance and work-site enforcement in order to try and prevent any wrongdoing and a possible raid.

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  • Employer compliance and worksite enforcement is at the forefront of every prudent Employer’s agenda because of the tough ‘enforcement only’ line of thinking that has become prevalent throughout the country
  • Only in recent years has IRCA truly been enforced, with a dramatic increase in the last five years – this has been attributed to post 9-11 anti-immigration leanings as well as today’s hostile worksite enforcement environment.
  • Knowledge cannot be inferred solely on the basis of an individual’s accent or foreign appearance. E.g. – “well this applicant looks foreign so they are probably illegal and I’m not hiring them or I’ll get into trouble” “ Inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition” Reasonable person = use your common sense! Would the reasonable employer presented with the same documents and using some good old fashion common sense be able to accept the documents on their face?
  • An employer may be imputed with constructive knowledge depending on the circumstances and fact patterns. A new regulation which was to be implemented in September 2007 states: that an “employee's request that employer: 1. file a labor certification or 2. employment based visa petition on behalf of the employee is an example of a situation that may, depending on the totality of relevant circumstances, require an employer to take reasonable steps in order to avoid a finding by DHS that the employer has constructive knowledge that the employee is an unauthorized alien” This regulation is pending federal court litigation and has been enjoined from being enforced at this point.
  • This most likely IS a picture of Jose Pacheco BUT the reasonable employer using their common sense could make a connection that this MAY NOT be a legal driver’s license What is the employer to do if presented with this? Ask the employee to present another document to verify identity (thereby investigating the suspicious circumstances)
  • It is not the employers duty to become a forensic specialist in determining whether the documents presented are valid but common sense prevails – if a document does NOT appear to be genuine and relate to the individual the employer may refuse to honor that document. Which in turn takes us to the topic of proper I-9 compliance – what is it and why is it important?
  • Proper I-9 Compliance is the starting point for any employer in order to ensure that they are somewhat insulated from an Audit and/or a raid and the correlating criminal and civil penalties and sanctions. As employers become more aware of the penalties for employing or continuing to employ unauthorized workers, they have undertaken new I-9 compliance policies, paying attention not only to detail, but substance as well.
  • This requirement includes family members who work for the business, thus an I-9 must be completed for an employer’s son, if he works for the business
  • WAL-MART There are some lessons to learn from Wal-Mart, although they are a huge company, some of their mistakes and corrections can shed light on proper compliance for ALL companies. A large amount of the contractor’s employees were not authorized to work and Wal-Mart was subsequently raided Wal-Mart did not concede or admit any liability but negotiated a settlement wherein they paid $11 million to the Government. Wal-Mart also hired a full time in house immigration attorney in charge of compliance – a business expense that is much more cost efficient than paying $11 million to the Government. The 12 corporations and executives who actually employed the unauthorized workers involved in the Wal-Mart investigation pleaded guilty to criminal charges and agreed to pay an additional $4 million.
  • One of the main misunderstandings is when to complete the I-9 – it is important to note that it is completed AFTER hire – it is not to be used to pre-screen applicants. A Note on Re-verification: An employer should keep track of when certain employees’ work authorization expires and at that point they must re-verify that employee’s authorization to work. If an employee presents an unrestricted Social Security card upon re-verification, the employee does not also need to present a current DHS document You should not re-verify an expired U.S. passport or an Alien Registration Receipt Card/Permanent Resident Card, Form I-551, or a List B document that has expired
  • The only non-original document an employer may accept is a certified copy of a birth certificate Document abuse can consist of asking for more or different documents than what is listed on the I-9 as well as requiring only DHS issued documents from non-citizens or terminating employment of someone whose Permanent Resident Card expired
  • May be a good option for employers who desire to be paperless and is more cost efficient in the long run due to less filing space and expense, less employee time involved and providing a good faith defense in the event of an I-9 audit or raid which can help avoid liability and penalties
  • The new form was implemented as of December 26, 2007 and all employers are mandated to use the new form as of that date.
  • This is a sample of a ‘green card’ aka ‘Permanent Resident Card’ which has a 10 year expiration date. In the past these were titled ‘Resident Alien Card’ and those typically do not have an expiration date but there is pending legislation to make it a requirement to obtain the new 10 year version of the card as shown above If the person is a conditional resident the card will have an expiration from 2 years of the date of issue.
  • In spite of rumors to the contrary there is no requirement at this time for people to renew or replace the old version of the card which have no expiration date .
  • The EAD has a validity period and the expiration should be noted by the employer as the employee’s authorization to work must be re-verified on or before the expiration
  • It is advisable to have at least one assigned person in charge of the public inspection folders and to keep track of the expirations of work authorization for each employee.
  • The SSA notifies employees and employers of the mismatch because the employee will not receive credit for the social security earnings until the mismatch is resolved. An Employer should take reasonable steps to resolve any mismatch and apply these steps uniformly to all employees referenced in the no match letter.
  • Currently an employer is required to respond to the no-match letters in a ‘ timely ’ manner Because of the lack of clarity, the DHS has recently promulgated a new regulation detailing what reasonable steps should be taken by an employer when a ‘no match’ letter has been received Federal litigation is ongoing and currently the SSA and DHS have been restrained from issuing the new ‘no match’ letters – there is an expected outcome to the litigation around March or April of 2008.
  • This timeline is found in the current regulation but as mentioned previously, there is pending litigation surrounding such regulation and as a result it has not been implemented. Revisions are expected but the common thought is that there will not be much substantial change to the current language as set forth.
  • An ICE raid (which is different than an audit or inspection) can be the result of an adverse I-9 audit where many of the employees documents appear to be falsified or invalid. ICE may use the opportunity of an audit to gather information about the premises, the employees, and the practices and polices of the company for a possible future raid.
  • Typical fact patterns surrounding a Raid: ICE conducts an I-9 audit which reveals that a large number of employees are using false documents – ICE uses this information to secure a search warrant to perform a raid and arrest and interrogate employees Arrests will be made of anyone who cannot prove legal status – including U.S. Citizens An arrested employee will sometimes become an confidential informant An arrested employee will also sometimes admit he received a no match letter and he went to the employer and gave them new identity and work authorization and that the employer allows such changes even knowing they are not valid It is important for the company to immediately contact their attorney and make preparations to post bond for the employees and/or pay them whatever is owed to them The investigation will continue for months and even years after a raid and legal representation is necessary throughout this process
  • IFCO Systems In April of 2006, ICE conducted a raid on IFCO Systems, a Houston-based company. ICE agents executed arrest and search warrants at 40 IFCO worksites throughout the United States. ICE agents apprehended 1,187 unauthorized workers at IFCO worksites. Five (5) executives and managers were also criminally charged. The former IFCO general manager pleaded guilty to conspiracy to transport and harbor illegal aliens and possession of identification documents. The former corporate new market development manager pleaded guilty to conspiracy to transport and harbor illegal aliens. The IFCO general manager and assistant general manager pleaded guilty to the misdemeanor offense of unlawful employment of illegal aliens. The former IFCO assistant general manager pleaded guilty to conspiracy to commit the misdemeanor offense of unlawful employment of illegal aliens. ALL 5 were U.S. Citizens
  • Penalties were recently increased which indicates the ‘enforcement’ crackdown on employers Important note: an employer need not be employing any unauthorized workers in order to be penalized for “paper” violations, which are extremely common Class action lawsuits may also be filed under the RICO (Racketeer Influenced and Corrupt Organizations Act) Statutes. A class of current and/or former employees claim that the employer’s practice of hiring and sometimes harboring undocumented workers and encouraging them to enter the United States illegally artificially suppress the wages of the employee’s. The employees need not be authorized to work in order to have standing to sue under RICO. RICO allows successful plaintiffs to recover three times their compensatory damages and attorneys’ fees
  • I-9 offenders may simply include employers who have repeatedly failed to complete the I-9’s completely and correctly - this does not necessarily have anything to do with the employment of unauthorized workers! Employers may be charged with conspiring to transport, harbor, encourage and induce undocumented foreign nationals to reside in the United States for commercial advantage and private financial gain. “ Harboring” means any conduct that tends to substantially facilitate an alien to remain in the U.S. illegally - An employer can be convicted of the felony of harboring unauthorized workers if he takes actions in reckless disregard of their illegal status, such as ordering them to obtain false documents, altering records, obstructing inspections, or taking other actions that facilitate the alien’s unauthorized employment. Money laundering charges are brought against employers where the money earned from knowingly employing unauthorized workers is put back into the business which continues to have a policy of employing unauthorized workers – this is what can lead to seizure and forfeiture of assets ICE has made it clear – they are going after EMPLOYERS and Executives
  • The dramatic increase in worksite arrests is a good indicator of the cultural climate we are living in. ICE has shifted its approach to worksite enforcement by bringing criminal charges against employers, seizing their assets, and charging more employers with money laundering violations. Identity Theft is a huge issue right now Micro Solutions Enterprises This is an example of a raid on a company where the industry is not normally targeted but other factors led up to the raid, namely identity theft and fraudulent documents. More than 100 U.S. Immigration and Customs Enforcement agents raided the printer supply manufacturer in the San Fernando Valley in February of this year, taking into custody about 120 employees for being in the country illegally and arresting eight on federal criminal charges for fraudulent information to get their jobs The employer should make every effort possible to hire a legal workforce to replace those arrested ASAP
  • Swift & Company Dec. 2006 - more than 1,297 employees were arrested at 6 Swift meat processing facilities. 274 were charged criminally. About 30% of the I-9s at the Swift facilities are suspected as being fraudulent. July 2007 - ICE arrested 20 more employees (Swift II) after executing federal and state warrants. These arrests included a human resources employee, a union official, and current or former Swift employees identified as suspected identity thieves. The company has not been charged. Most likely because the company had a good faith defense in that Swift & Company was a participant in the Basic Pilot Program of ICE after having been fined for over scrutiny of I-9 documents! The government has stated they will not prosecute a company who is a participant of Basic Pilot/E-Verify - but the individuals employed by the company have no such guarantee. So…WHAT CAN AN EMPLOYER DO? If not done so already, an employer should retain immigration counsel to develop and initiate a program for corporate immigration compliance This can be helpful in future negotiations with the U.S. Attorney and ICE for civil vs. criminal prosecution or for a negotiated plea My colleague, Aranza Rojas, will now talk about initiating a compliance policy as well as available Government Programs for employers
  • The ICE Storm

    1. 1. I-9 Compliance and Worksite Enforcement Melissa M. Chase, Esq.
    2. 2. <ul><li>The Immigration Reform and Control Act (“IRCA”) </li></ul><ul><ul><li>Took effect on November 6, 1986 </li></ul></ul><ul><ul><li>Requires an I-9 to verify employment authorization of all employees </li></ul></ul><ul><ul><li>Outlaws hiring or continuing to employ an alien knowing the alien is unauthorized to work in the U.S. </li></ul></ul>
    3. 3. <ul><li>What is “ Knowing ” ? </li></ul><ul><li>Actual knowledge </li></ul><ul><li>Constructive knowledge </li></ul><ul><ul><li>Reasonable person standard </li></ul></ul><ul><ul><li>Totality of the circumstances </li></ul></ul>
    4. 4. <ul><li>Constructive Knowledge is imputed if the employer: </li></ul><ul><ul><li>Fails to complete or improperly completes Form I-9 </li></ul></ul><ul><ul><li>Has information indicating that alien is unauthorized to work </li></ul></ul><ul><ul><ul><li>Written notice from the Department of Homeland Security </li></ul></ul></ul><ul><ul><ul><li>Other notice – highly suspicious documents, media reports, etc. </li></ul></ul></ul><ul><ul><li>Acts with reckless and wanton disregard </li></ul></ul><ul><ul><li>Deliberately fails to investigate suspicious circumstances </li></ul></ul>
    5. 5. <ul><li>Example of a ‘suspicious’ document </li></ul>
    6. 6. <ul><li>What’s Wrong With This Picture? </li></ul>
    7. 7. I-9 COMPLIANCE
    8. 8. <ul><li>Who must complete a Form I-9? </li></ul><ul><li>Rule: ALL employers must complete a Form I-9 for ALL employees - regardless of the size of their business! </li></ul><ul><li>Exceptions: </li></ul><ul><ul><ul><li>Pre-November 6, 1986 hires </li></ul></ul></ul><ul><ul><ul><li>Casual domestic work in a private home on a sporadic, irregular, or intermittent basis </li></ul></ul></ul><ul><ul><ul><li>Independent contractors and their employees </li></ul></ul></ul>
    9. 9. <ul><li>Independent Contractors </li></ul><ul><li>and Sub-Contractors </li></ul><ul><li>Employer can be held liable for employing contractors and sub-contractors if the employer has knowledge of unauthorized workers </li></ul>
    10. 10. <ul><li>When must the Form I-9 be completed? </li></ul><ul><ul><li>Within 3 business days of hire or re-hire </li></ul></ul><ul><ul><li>Re-verifying upon expiration of work authorization </li></ul></ul><ul><ul><ul><li>On Section 3 of the old I-9 or, if already used, on a new I-9 </li></ul></ul></ul><ul><ul><ul><li>Beware: disqualifying an alien because of a future expiration date may be illegal discrimination </li></ul></ul></ul><ul><ul><li>No requirement to re-verify after a merger/acquisition but it is highly recommended </li></ul></ul>
    11. 11. <ul><li>How must the Form I-9 be completed? </li></ul><ul><ul><li>Examining original documents to verify both: </li></ul></ul><ul><ul><ul><li>identity and </li></ul></ul></ul><ul><ul><ul><li>work eligibility </li></ul></ul></ul><ul><ul><li>Treating all employees the same </li></ul></ul><ul><ul><li>Not committing document abuse </li></ul></ul>
    12. 12. <ul><li>What about Electronic I-9 Compliance? </li></ul><ul><li>Regulation effective since 2006 </li></ul><ul><li>Employers may complete, sign and store I-9’s electronically </li></ul><ul><ul><li>Paperless office </li></ul></ul><ul><ul><li>Cost efficient </li></ul></ul>
    13. 13. <ul><li>I-9 – The Three R’s </li></ul><ul><li>Review original documents </li></ul><ul><li>Re-verify only if employee’s authorization to work expires </li></ul><ul><li>Retain I-9 for 3 years after date of hire or 1 year after date of termination, whichever is later </li></ul>
    14. 16. Front of “Green Card” Back of “Green Card” Is upside down Current Version of the Permanent Resident Card
    15. 17. <ul><li>Older Versions of “Green Card” </li></ul>
    16. 18. <ul><li>Employment Authorization Document </li></ul>
    17. 19. Restricted Social Security Card
    18. 20. <ul><li>I-9 Public Inspection Folders </li></ul><ul><ul><li>Required: Retain the I-9 and make it available for inspection </li></ul></ul><ul><ul><li>Recommended: Separate folder for I-9s, rather than including them in the individual’s personnel file </li></ul></ul><ul><ul><li>NOT Required: Retain copies of the employee’s I-9 verification documents (but if copies are retained, the employer must do so for all employees) </li></ul></ul>
    19. 21. <ul><li>“ No Match” Letters </li></ul><ul><li>What are they? </li></ul><ul><ul><li>Notice from the Social Security Administration (SSA) of discrepancy between wage reporting and SSA information </li></ul></ul><ul><li>What are they NOT? </li></ul><ul><ul><li>A notice that an employee is not authorized to work </li></ul></ul><ul><ul><li>A statement about an employee’s immigration status </li></ul></ul><ul><ul><li>An implication that you or your employee intentionally provided incorrect information </li></ul></ul>
    20. 22. <ul><li>“ Reasonable Steps” </li></ul><ul><li>The new regulation which was to take effect September 2007 is entitled “Safe-Harbor Procedures for Employers Who Receive a &quot; No-Match &quot; Letter” </li></ul><ul><li>The underlying idea of the regulation is that an employer who takes “ reasonable steps ” is under a “ safe harbor ” from potential liability </li></ul>
    21. 23. <ul><li>Timeline for “Reasonable Steps” </li></ul><ul><li>Day 0 </li></ul><ul><ul><li>Employer receives letter from SSA or DHS indicating mismatch of employee’s name & SSN </li></ul></ul><ul><li>0-30 Days </li></ul><ul><ul><li>Employer checks own records, makes any necessary corrections and verifies corrections with SSA or DHS </li></ul></ul><ul><li>0-90 Days </li></ul><ul><ul><li>If necessary, employer notifies employee & asks employee to assist with correction </li></ul></ul><ul><ul><li>If necessary, employer then corrects its own records & verifies correction with SSA or DHS </li></ul></ul><ul><li>90-93 Days </li></ul><ul><ul><li>If necessary, employer performs special I-9 procedure </li></ul></ul>
    22. 24. <ul><li>Audits & Inspections </li></ul><ul><li>Every year Immigration and Customs Enforcement ( ICE ) conducts well over 60,000 inspections of I-9s </li></ul><ul><li>ICE usually audits an employer’s I-9s either because it is focusing on a particular industry , or because it has received information that unauthorized workers are employed </li></ul>
    23. 25. <ul><li>Important Note regarding </li></ul><ul><li>Audits/Inspections and Worksite Raids </li></ul><ul><li>For an I-9 Audit , ICE </li></ul><ul><ul><li>Is NOT required to have a search warrant </li></ul></ul><ul><ul><li>IS required to give 3 days advance notice (even if a subpoena has been issued) </li></ul></ul><ul><li>For a Worksite Raid , ICE </li></ul><ul><ul><li>IS required to have a search warrant </li></ul></ul><ul><ul><li>Is NOT required to give any advance notice </li></ul></ul>
    24. 26. <ul><li>“ The ICE Man Cometh” </li></ul>
    25. 27. <ul><li>Civil Penalties </li></ul><ul><ul><ul><li>From $110 to $1,100 for each failure to properly complete and maintain a Form I-9 for each employee </li></ul></ul></ul><ul><ul><ul><li>From $375 to $6,500 for each piece of document fraud </li></ul></ul></ul><ul><ul><ul><li>From $375 to $16,000 for each unauthorized worker the employer knowingly hired or continued to employ </li></ul></ul></ul><ul><ul><ul><li>Seizure and Forfeiture of assets </li></ul></ul></ul><ul><ul><ul><li>Employees may file a civil class action suit under the Racketeer Influenced and Corrupt Organizations Act (RICO) </li></ul></ul></ul>
    26. 28. <ul><li>Criminal Penalties </li></ul><ul><ul><ul><li>Repeat I-9 offenders </li></ul></ul></ul><ul><ul><ul><ul><li>$3,000 fine for each violation and </li></ul></ul></ul></ul><ul><ul><ul><ul><li>6 months in prison </li></ul></ul></ul></ul><ul><ul><ul><li>Harboring, Identity Theft, Fraud, Trafficking, Money Laundering </li></ul></ul></ul><ul><ul><ul><li>Conspiracy </li></ul></ul></ul><ul><ul><ul><ul><li>Up to $250,000 fine for each unauthorized worker and </li></ul></ul></ul></ul><ul><ul><ul><ul><li>Up to 5 years in prison (or 20 yrs for money laundering conspiracy) </li></ul></ul></ul></ul><ul><ul><ul><li>Document Fraud </li></ul></ul></ul><ul><ul><ul><ul><li>Up to $250,000 fine and </li></ul></ul></ul></ul><ul><ul><ul><ul><li>5 to 10 years in prison </li></ul></ul></ul></ul>
    27. 29. <ul><li>ICE Worksite Arrests </li></ul><ul><li>FY2002 FY2008 </li></ul><ul><li>Criminal Arrests 25 1103 </li></ul><ul><li>Employers, corporate officers, </li></ul><ul><li>managers, contractors, facilitators, </li></ul><ul><li>aliens </li></ul><ul><li>Administrative Arrests 485 5184 </li></ul><ul><li>Aliens unlawfully present in U.S . </li></ul>
    28. 30. <ul><li>The Profile of a “Targeted Company” </li></ul><ul><li>Executives are the least ‘in the know’ </li></ul><ul><li>I-9s may be perfect in detail but lack substance </li></ul><ul><li>Afraid to question authenticity of documents </li></ul><ul><li>Assumes long years of residence in U.S. equates into some sort of legal status (not so!) </li></ul><ul><li>Receives no match letters and ignores them </li></ul><ul><li>Doesn’t check social security numbers through any of the available sources </li></ul>
    29. 31. <ul><li>What can your company do to insulate itself from an ICE storm? </li></ul><ul><ul><li>Contact a qualified corporate immigration attorney to perform an internal audit </li></ul></ul><ul><ul><li>Have proper training for HR personnel </li></ul></ul><ul><ul><li>Maintain meticulous records </li></ul></ul><ul><ul><li>Never assume anything </li></ul></ul>
    30. 32. <ul><li>Slides and Information Prepared by: </li></ul><ul><li>Melissa M. Chase </li></ul><ul><li>Attorney at Law </li></ul><ul><li>www.melissachase.net </li></ul>

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