ICE enforcement is ramping up. On January 10th ICE announced a new three-prong approach to conduct worksite enforcement: (1) compliance through I-9 inspections, civil fines, and referrals for debarment; (2) enforcement through the arrest of employers knowingly employing undocumented workers and the unauthorized workers; and (3) outreach, through the ICE Mutual Agreement between Government and Employers (IMAGE) program, to instill a culture of compliance and accountability. Are you prepared?
In 2017 Homeland Security’s Immigration and Customs Enforcement (ICE) imposed a $300,050 penalty on DLS Precision Fab, a small sheet metal fabricator in Phoenix, Arizona, because the HR Director failed to comply with I-9 requirements. In another investigation, Asplundh Tree Experts, Co., one of the largest privately-held companies in the United States, headquartered in Willow Grove, Pennsylvania, pled guilty in September 2017 to unlawfully employing aliens. The highest levels of Asplundh management remained willfully blind while lower level managers hired and rehired employees they knew to be ineligible to work in the United States. The company paid an $80 million-dollar criminal forfeiture and $15 million in civil penalties.
Earlier this month, ICE raided a number of 7-Elevens around the country. The raids covered 98 stores in 17 states from coast to coast, and resulted in at least 21 arrests. Thomas Homan, Acting Director of ICE, noted that undocumented workers are a “pull factor” for illegal immigration, and stated, “[t]oday’s actions send a strong message to U.S. businesses that hire and employ an illegal workforce: ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.”
The triggers for ICE enforcement can be varied and many times out of the control of the employer. Examples include:
· A business owner contacted ICE and complained that a competitor was hiring undocumented workers.
· A disgruntled employee, seeking retaliation against the employer, contacted ICE and reported the company was harboring undocumented workers.
· An employee, seeking to retaliate against a co-worker with whom he was having a personal conflict, contacted ICE to report that co-worker was undocumented, which led ICE to investigate the whole company instead.
· An undocumented employee was arrested for a traffic violation and referred to immigration officials; while being interviewed by immigration agents, the employee disclosed his employer, which prompted ICE to investigate the company.
I-9 is not the only entryway for audits. For example, ICE will send investigators to determine whether salary, job duties, presence of an organization, and H-1B holder exists. The ICE investigator will show up unannounced and will request to meet the H-1B holder, see where the person works, and ask for documentation that supports the H-1B.
Therefore, HR needs to ensure compliance of its immigration processes or risk liability, including criminal arrests. The steps that HR needs to take include auditing all I-9s, completing or correcting those that are incomplete, training all hiring managers and staff involved in I-9 and H-1B processes, and developing an appropriate response mechanism when ICE comes a-knocking, including having a list of parties that need to be contacted, including the immigration attorney.
Finally, if the organization could be at risk for an ICE raid because of the type of work done and workers hired, a team (which includes legal counsel) needs to be trained to respond appropriately. This should include reviewing the government's search warrant to ensure the search is within the warrant's scope, monitoring the search without interfering, complying with the terms of warrant, tracking what and who is seized by ICE, preventing any employees from doing anything that might constitute harboring (e.g., hiding employees or aiding in their escape from the premises, shredding documents, or providing false or misleading information), and preparing to address the media during and after a raid.
Additional ASE Resources
Tuesday, February 20th ASE is offering its I-9 & E-Verify course in Livonia. Participants will learn how to properly complete the Form I-9, how to conduct internal Form I-9 audits, and how to respond to an agency audit or raid. This course will explore how the United States Immigration and Customs Enforcement (ICE) has significantly increased the number of audits, raids, and investigations it performs on employers for Form I-9 compliance and issues related to the possible employment of unauthorized foreign workers. To learn more or register click here.
Sources: Littler 1/11/18, Fisher Phillips LLP 1/12/18, Jackson Lewis 1/12/18, DeWitt Ross & Stevens, 10/19/17, USCIS 9/27/17