Increased Enforcement Highlights The Need For Employers To Have Immigration Compliance Programs

by Butler Snow LLP
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This past weekend the United States Immigration and Customs Enforcement (ICE) launched raids in Los Angeles, Atlanta, Chicago, New York, North Carolina, and South Carolina arresting hundreds of undocumented immigrants. While ICE stated that the enforcement action was focused on arresting and deporting convicted felons, the Washington Post reported that many of those arrested had no convictions of any kind. It is no secret that this administration places a high priority on immigration enforcement. The president campaigned with the promise of setting up a new “deportation force” to focus on arresting and deporting undocumented immigrants. On January 25th the president issued an executive order titled “Enhanced Public Safety in the Interior of the United States.” At the same time the president called for ending federal funds for “sanctuary cities,” which do not automatically hand over illegal immigrants who come to the attention of local law enforcement.

In this climate employers should expect ICE to increase its work site enforcement efforts. During the Bush administration ICE regularly conducted work site raids arresting undocumented immigrants and bringing civil and criminal charges against employers. The criminal exposure included personal criminal liability for some hiring managers and business owners. This creates a unique situation for employers. They welcome quality, foreign workers, but must be careful to confirm their immigration status. Although they are not immigration experts, employers are required to verify the identity and employment eligibility of new hires. Employers must recognize that some employees present what appears to be valid work authorization or other documentation making them eligible for employment. This includes employees or staffing companies who obtained H1B Visas using fraudulent information. This can create civil and criminal liability for the employer. However, there is no need to panic. If an employer has a valid and bona fide immigration enforcement compliance program in place they can mitigate the risk of exposure to penalties.

So what type of work site enforcement should employers expect from ICE? Workplace enforcement falls into two categories: 1) overt work site raids to detain and arrest undocumented immigrants and 2) the I-9 audit also known as the “silent raid.”

During the Bush Administration overt work site raids were common-place. The disruption of the raids for employers was immense. The raids temporarily shut down operations as employees were arrested, leaving employers short-handed. Many times the raids resulted in civil and criminal charges for employers who either knew the employees were undocumented or who did not take the necessary steps to verify the employee’s documented status. It is reasonable to expect that with the administration’s enhanced priority on immigration enforcement that this enforcement tactic will once again become commonplace.

In 2009 ICE announced that their number one priority is to target employers who knowingly employ unauthorized foreign nationals. The primary enforcement tool used by ICE is the I-9 audit. These audits look for both technical and intentional violations of immigration laws. As a result of this I-9 effort ICE brought actions against well-known companies. Since these audit units have been fully staffed and already have conducted thousands of I-9 audits of employers it is only reasonable to assume that ICE will continue to focus on employers as well as simply arresting illegal immigrants.

While the I-9 documents employment eligibility, it also serves as an employer’s defense against an allegation of knowledge of an employee’s illegal status. For example, assume an employer hires an individual who entered the U.S. illegally. The individual then obtained very authentic looking yet fake immigration papers, which they presented in order to secure employment, and the employer innocently relied on them. If the employer fails to complete an I-9 for the foreign national and then ICE subsequently determines that the individual is undocumented, the employer will be deemed to have known all along as a result of his failure to complete an I-9. In contrast, if the employer properly completes the I-9 and the individual is later discovered to be without work authorization, the employer has an “affirmative defense.” This does not mean simply completing an I-9 will insulate the employer. ICE also will penalize the employer if they did not take steps to verify the employee’s documentation. In this age of fraudulent documentation an employer cannot simply accept the documentation without verifying its authenticity.

If employers take the time to establish a well-thought out compliance program that shows they take seriously their obligation to comply with immigration laws they will be well insulated against these enforcement actions. A serious compliance program will have the following features:

  1. External I-9 audits by an independent party.
  2. Developing a formal, written compliance program that contains:
    1. Clearly defined hierarchy of supervision, responsibility and accountability for making compliance-related decisions;
    2. Detailed descriptions of the roles of the various individuals involved in compliance decisions;
    3. Procedures to verify employees’ documentation;
    4. Established time frames for completion of specific actions, such as when the I-9 must be completed and by whom;
    5. Direction as to when managerial involvement is required and when inside/outside counsel is appropriate;
    6. Summary of state and federal immigration laws, including document retention requirements, maintenance of lawful immigration status provisions, and summary of penalties;
    7. Clear description of hiring/firing policies and procedures and compliance with anti-discrimination and prohibited practices, including discriminatory documentary practices, citizenship status/national origin discrimination, and retaliation; and
    8. Plan of action for handling and responding to government activity such as ICE audits and raids.
  1. Annual Training for employees and management
  2. Re-verification of employee’s status to insure that their authorization has not expired.
  3. Consider using ICE’s E-Verify system in conjunction with this compliance program, paying attention to those state jurisdictions where E-Verify has become mandatory for many employers.

ICE also has the ICE Mutual Agreement between Government and Employers program (IMAGE) which includes what are considered the twelve best employment practices. However, this program is very intrusive and costly for the employer. Accordingly, very few employers have joined this program.

The challenges facing employers are many, but uncertainty about verifying employment eligibility of foreign workers does not need to be one of them. Through proper planning, diligence and discipline, employers can eliminate the worry about the consequences of a government audit.  The U.S industry relies heavily on foreign labor, and because of this there is a very good possibility that many employers will at some time employ an undocumented worker, albeit unknowingly. Rather than ignoring this issue and allowing it to become like a ticking time bomb, wise employers will confront this head-on with a carefully prepared immigration compliance plan.

It absolutely can be done, and more importantly, in light of the current enforcement environment, it should be done. Never more relevant than now is the old saying “where there’s a will, there’s a way.” The mounting risks of non-compliance are simply too great for employers to continue throwing caution to the wind and assuming their workforces are “ok.” By getting their houses in order now, employers will be in a better position to weather the storm and to succeed in the business they love.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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