California Employment Law for Florida Employers
This should be a great seminar. Looking forward to seeing you there.
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Alert: ICE Serves 652 Businesses Nationwide With Notices of Inspection
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On July 2, 2009, the U.S. Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) launched a new and bold initiative to audit companies by issuing Notices of Inspection (“NOIs”) to 652 businesses nationwide.
ICE has stated these “audits are not random” and that the businesses were identified based on “leads and information obtained through other investigative means.” These notices are the government’s first step in what could be the beginning of a very lengthy investigation. ICE officers plan to review the I-9 forms and identification documents of all 652 companies. ICE has also stated that those with significant numbers of undocumented workers may be fined. And, if agents believe the businesses “knowingly hired” illegal immigrants or find “a pattern of egregious violations” criminal investigations could be launched. Pat Reilly, ICE’s spokesperson, said that ICE would not “release the names or locations of the businesses that are being audited because of the ongoing investigations” and that the targeted businesses “represent a broad range of industries.”
However, it has been reported that ICE notified 80 companies in California, including three in Los Angeles, which ICE plans to fine because they employ large numbers of people who do not appear to be authorized to work in the U.S. ICE agents had conducted audits on these companies’ records earlier, and in many cases determined that the Social Security numbers listed for employees either did not exist or did not belong to the employees specified.Targeted companies also include .jpg)
businesses in New York, San Antonio, Seattle, and San Diego. ICE has also sent audit notices to 32 companies in Arizona. For a long time the government has been seeking new ways to impose E-Verify on all US employers. I believe the strategy behind these notices is to paint a picture of rampant immigration violations so, come September 2009, Congress will make E-Verify mandatory for every employer. For as much as the government loves E-Verify, it will never be a substitute for immigration reform or stop illegal immigration.
DHS Issues a Fact Sheet on New Worksite Enforcement Strategy
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On April 30, 2009, the U.S. Department of Homeland Security (“DHS”) issue a Fact Sheet in connection with its new worksite enforcement strategy. The new worksite enforcement strategy shifts its enforcement focus from undocumented workers to employers. We predicted this shift in strategy back in March of 2009 (See Obama Administration's Immigration Approach with Napolitano will Point to Employers).
The DHS’s new worksite enforcement strategy seeks to:
Pursue a strategy that addresses both employers who knowingly hire illegal workers as well as the workers themselves.
Reflect a renewed department-wide focus targeting criminal aliens and employers who cultivate illegal workplaces by breaking the country’s laws and knowingly hiring illegal workers.
Focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration.
Continue to arrest and process for removal any illegal workers who are found in the course of these worksite enforcement actions in a manner consistent with immigration law and DHS priorities. Moreover, to use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.
To hold ICE to a high investigative standard which will include:
Looking for evidence of the mistreatment of workers, along with evidence of trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering, and other such criminal conduct..jpg)
Obtaining indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney's Office (USAO) to prosecute the targeted employer before arresting employees for civil immigration violations at a worksite.
DHS’ Fact Sheet also states that "existing humanitarian guidelines will remain in effect, impacting worksite enforcements involving 25 or more illegal workers, which reflects a change from the previous threshold of 150; it is committed to providing employers with the most up-to-date and effective resources to comply with our nation’s laws; it will continue to work with partners in the public and private sectors to maintain a legal workforce through training and employee verification tools like E-verify, which improve the accuracy of determinations of employment eligibility and combat illegal employment."
E-Verify Dropped From Stimulus Bill
A provision in the $787 billion stimulus bill that would have required employers receiving federal stimulus money to use E-verify was dropped from the bill. This move is a victory for employers in the construction business receiving assistance from the stimulus bill.
A representative from the American Civil Liberties Union (“ACLU”) recently stated that E-Verify is "flawed" as an employment authorization verification system and that forcing employers to use it would have held Americans "hostage to bad government data and even worse government database systems."
Also eliminated from the final conference report is a provision that extended the E-Verify program beyond March 6, 2009, when it is set to expire. It is expected, however, that E-verify or a similar program could be established permanently by the Comprehensive Immigration Reform (CIR) sometime before the end of this year.
USDOL to Audit All PERM Labor Certifications Filed by Fragomen
On June 2, 2008, the USDOL announced that all PERM Labor Certification Applications (“LC”) submitted by the law firm of Fragomen, Del Rey, Bernsen & Loewy (“FDBL”), the largest immigration firm in the nation, will be audited.
USDOL’s announcement states: “The department has information indicating that in at least some cases the firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified U.S. workers. The audits will determine which, if any, applications should be denied or placed into department-supervised recruitment because of improper attorney involvement in the consideration of U.S. worker applicants.”
I do not know what FDBL did or did not do, but I certainly take objection at USDOL’s decision, as a colleague stated, for “trying” FDBL in a press release. Such announcements should be reserved only for cases in which the USDOL has found the existence of wrongdoing.
In its announcement the USDOL also states that: “There is no legitimate reason to consult with immigration attorneys before hiring apparently qualified U.S. workers who have responded to recruitment required by the permanent labor certification program.” I could not disagree more or in stronger terms. It is wrong for an attorney to advise the employer not to hire a qualified U.S. worker, but USDOL regulations are clear as far as an employer’s right to receive legal counsel through the much confusing and convoluted PERM process. 20 CFR § 656.10(b)(1) states clearly that attorneys may represent employers throughout the process. As long as the attorney does not interview or consider the U.S. worker for the position, the attorney has not violated any rule. Through this announcement USDOL also appears wanting to restrict the open communication that must exist between an attorney and his client for purposes of legal representation.
But there is another point I wish to make. Many employers in their quest for the “easiness” of a mill 
application process and low attorney fees receive legal services which may cover the minimum application requirements, but that do not offer protection. The days of “easy” compliance are long gone; today’s immigration law is complex, always changing and confusing. The US government has become more active in enforcing immigration laws against employers. In response to 9/11, the government has increased security measures and electronic initiatives to address national security concerns. The increase in the government's immigration policies is manifesting itself in a resurgence of government audits and criminal investigations of US employers. Given these enforcement times we live in, employers would be better served by researching and hiring legal services that offer them safety.
