How To Protect Yourself In An ICE Storm
By: DEBRA A. SCHNEIDER & LOAN T. HUYNH
June 2007
“No employer, regardless of industry or location, is immune from complying with the nation’s laws. ICE and our law enforcement partners will continue to bring all our authorities to bear in their fight using criminal charges, asset seizures, administrative arrests and deportations.”
— Julie L. Myers, Assistant Secretary for
Homeland Security, Immigration and Customs Enforcement
This warning and the recent slew of raids, arrests, and criminal indictments against employers for worksite violations across the United States by the Immigration and Customs Enforcement (“ICE”) branch of the Department of Homeland Security are clear indications that employers are on the frontline of the government’s efforts to stop illegal immigration. Recently provided with increased funding, ICE is using its authority under the Immigration Reform and Control Act (“IRCA”) to target employers and employees suspected of engaging in unauthorized employment. ICE has stated that its mission is to target employers that are “egregious violators” of U.S. immigration laws, and it has initiated a strategic shift by bringing criminal charges and seizing assets rather than imposing administrative fines and sanctions. Recent cases show that ICE is no longer merely using civil or administrative fines to punish employers after an I-9 investigation or audit. Employers who are found to be egregious violators can now find themselves facing criminal racketeering charges under RICO, potential jail time for harboring or smuggling illegal aliens, employee lawsuits for back pay, and personal fines and criminal charges against key personnel.
Potential Criminal Consequences of an ICE Storm
Recent raids against employers believed to have unauthorized workers have been based on ongoing criminal investigations by ICE. ICE has arrived at worksites with both criminal and civil warrants. It has searched businesses, frozen bank accounts, and arrested not only employees but also employers. Criminal penalties and fines are now used as a deterrent to other businesses. For example, Golden State Fence Company recently agreed to forfeit almost $5 million. (Ironically, one of the jobs contracted out to Golden State included work on the border fence between San Diego and Mexico.) The company’s president and vice president pleaded guilty to hiring unauthorized workers and will pay individual fines of $200,000 and $100,000, respectively, in addition to the multi-million dollar corporate fine. Both executives face up to five years in prison.
The Golden State raid is not an isolated case. ICE recently raided a temporary employment agency in Baltimore that was suspected of providing unauthorized workers to its clients. ICE raided five businesses and arrested 69 workers in that raid. Also, in February 2007, ICE unsealed a 23- count indictment against three Florida cleaning company executives. The charges included conspiracy to defraud the United States and harbor illegal aliens for profit. Similarly, on April 4, 2007, ICE arrested 13 managers and employees from Quality Service Integrity, Inc, a cleaning service operating within the Cargill Meat Solutions Plant, on charges of aggravated identity theft.
Closer to home, on December 12, 2006, ICE raided six Swift & Company facilities located in Greeley, Colorado; Cactus, Texas; Grand Island, Nebraska; Hyrum, Utah; Marshalltown, Iowa; and Worthington, Minnesota. An estimated 1,282 Swift employees have been detained on immigration violations, and 65 have been charged with criminal violations related to identity theft. Swift, however, was able to avoid penalties due to its policies and participation in the Basic Pilot Program described below.
ICE has guaranteed that this trend will continue, as worksite enforcement and homeland security are now its top priorities. It is essential that employers take immediate precautionary steps to protect themselves from potential civil and criminal liability.
Don’t Give ICE an Excuse: Ensure that your I-9 Files are in Compliance
Under IRCA, employers must complete Form I-9, Employment Eligibility and Verification, for all employees hired after November 6, 1986. ICE is authorized to conduct investigations to determine whether employers have knowingly employed unauthorized workers and failed to properly complete, present, or retain the Form I-9 for newly hired employees. An ICE investigation nearly always involve the examination of the employer’s I-9 files, even though the I-9s may not be the target of its investigation. In fact, ICE has recently hired forensic auditors to focus on I-9 enforcement.
To ensure compliance with the I-9 requirements under IRCA, a company should establish an I-9 policy that includes:
- The proper and timely completion and retention of Form I-9 for all employees hired after November 6, 1986;
- Zero-tolerance for the employment of individuals who do not provide the proper identity and employment eligibility documents for Form I-9;
- A tickler system for I-9s that require reverification;
- I-9 training for all company representatives who are part of the recruitment, orientation, and hiring processes for the company; and
- Regularly scheduled in-house I-9 audits.
Self-audits help ensure that I-9s are stored, prepared, and completed accurately, and that errors can be corrected in a timely fashion. An internal audit can be conducted by company personnel or outside counsel. Reviewing a company’s I-9s provides opportunities to correct any technical violations, train company representatives responsible for I‑9 completion and tracking, and develop compliance procedures. A company can also evaluate whether it is a good candidate for the basic pilot program--a voluntary, online verification system that allows employers to confirm the eligibility of new hires by checking the personal information they provide against federal databases. The system will confirm, for example, whether a social security number matches identity information provided by the employee. Participation in the program provides a good-faith defense if an employer’s IRCA compliance is challenged, and may help it avoid prosecution and administrative fines.
Conducting self-audits puts a company in better position if it becomes the subject of an ICE investigation. While employers cannot verify whether documents used for employment authorization are authentic, self-audits establish good-faith compliance.
A showing of good faith can help avoid potential fines. Administrative fines can range from $275 - $2,200 per unauthorized worker for a first offense, to $2,200-$5,500 for a second offense, and $3,300 - $11,000 for a third offense. Civil penalties, ranging from $100 to $1,000 per employee, can be levied for failure to properly complete Form I-9. Criminal penalties for “engaging in a pattern or practice of knowingly hiring or continuing to employ unauthorized aliens” can include fines of $3,000 per unauthorized employee and six months of imprisonment. Civil document-fraud penalties may also be charged, with fines of up to $5,000 per violation. Finally, employers found to have knowingly hired 10 or more aliens or to have engaged in harboring, smuggling, or unlawful transportation of unlawful aliens can face up to five years in prison.
Steps to Take During an ICE Storm
What should you do when ICE arrives? Don’t wait for a phone call, letter, or knock on your door. The first step should be taken well before ICE arrives: Devise an investigation-response action plan. The plan should include:
The name and contact information of legal counsel. If the company’s legal counsel is not in-house, there should be written instructions for personnel to contact outside counsel immediately.
The name of the company’s representative for the ICE investigation or audit. The name of the company’s appointed representative for the investigation or any related matters should be given to ICE as soon as contact is made. The representative, who could be an in-house attorney or outside counsel, should receive education on what can happen during an ICE investigation or audit. All communications with ICE should be made through legal counsel.
The names of company personnel who should be aware of the ICE investigation or audit: All management personnel should be informed of the investigation.
Personnel should be instructed not to provide any documentation or information to ICE unless there is a warrant issued, and to do so under the supervision of legal counsel. Note that ICE is required to give three-days notice before an I-9 audit, unless it presents a search warrant or subpoena.
ICE has made it a priority to continue worksite investigations of companies believed to knowingly employ undocumented workers. Summer may be just around the corner, but companies should still take precautions against a possible ICE storm.