Two-Part Series Seminar: Employment Verification Issues for Employers:

 
 

 
Two-Part Series SeminarForm I-9 and E-Verify Training
Employment Verification Issues for Employers:

Presented by
Hector A. Chichoni, Esq., EpsteinBeckerGreen
  
 

Since its inception more than two decades ago, employers have failed to fully comply with the Immigration Reform and Control Act (IRCA) of 1986. As a result, Form I-9 compliance levels among employers are of great concern. With the government cracking down on compliance, employers need to take immediate steps to get their I-9 “houses” in order.

Moreover, on September 14, 2009, Alejandro Mayorkas, head of U.S. Department of Homeland Security, Citizenship and Immigration Services, told reporters that the agency is “taking steps to prepare for the possibility that E-Verify may become mandatory for all employers” adding that “it is our responsibility to be ready should E-Verify ever be required of all employers.”

 

We are conducting a two-part interactive Form I-9 and E-Verify training program to offer hands-on training to ensure the attendees are confident, knowledgeable and capable of managing I-9 and E-Verify compliance.
 
 
WHERE
The Miami City Club
 
200 South Biscayne Boulevard
55th Floor
Miami, Florida 33131
 
 
Part  I
Form I-9 Training
 
Form I-9 training is the first part of the two-part series which includes copyrighted training materials with practical examples along with useful documentation and resource materials. The components of part one, Form I-9 Training, includes:
  • In-depth look at I-9 Completion, Documentation and Receipt Rules.
  • Forensic training for questionable documents.
  • Review internal process for re-verification and notification tracking.
  • Establish an I-9 correction process.
  • Provide self-evaluation and team-based testing.
  • Help you learn how to process the I-9 form correctly;
  • Raise your comfort level in working with the documents and policies involved;
  • Enable your company to ensure the employees are authorized to work and are compliant with I-9 standards;
  • Serve as a quick and easy job aid and reference whenever needed.
  •  
E-Verify training, the second part of the two-part series, will help you get the information you need to properly weigh the pros and cons of the E-Verify system, you will learn what every employer should know about the electronic employment verification system:
  • How federal contractors are troubleshooting E-Verify issues
  • What chances have been made, what problems have been solved, and what problems remain.
  • How the government is increasing its worksite enforcement activity
  • Best practices for avoiding worksite enforcement actions
  • How to find out if your organization is being targeted from an audit, and what agents look for in an audit
  • Your legal recourse if ICE agents arrive on site
  • The potential civil and criminal consequences for employers from an audit
  • Recent government actions to fine employers for immigration violations
  • Your legal recourse if fines are levied against your organization
  • What happens to workers who can't prove they're authorized to work in the U.S.
  • How the government's new audit strategy impacts the current debate on making E-Verify mandatory for all employers              
Part II
 E-Verify Training
Date and Time: Thursday, October 21, 2010, 8:30 am - 10:30 am
Date and Time: Thursday, September 30, 2010, 8:30 am - 10:30 am
 

REGISTRATION FEE
The fee for this event is $25 for each session, or you can purchase both sessions in advance for $35.  This fee includes breakfast, parking and training materials. 
 


 
To register, please .click here

If you have any questions about this briefing, please contact 

Anneliese Garcia, (305) 579-3200, or agarcia@ebglaw.com
 
About EBG: Founded in 1973, EpsteinBeckerGreen is a law firm with approximately 350 lawyers practicing in offices in Atlanta, Boston, Chicago, Houston, Los Angeles, Miami, New York, Newark, San Francisco, Stamford and Washington D.C. The Firm’s size, diversity, and as a founding member of the International Lawyers Network (ILN), allow its attorneys to address the needs of both small entrepreneurial ventures and large multinational corporations on a worldwide basis. EpsteinBeckerGreen continues to build and expand its capabilities as a law firm focused on five core practices: Business Law, Health Care and Life Sciences, Labor and Employment, Litigation and Real Estate. For more information on EpsteinBeckerGreen, please visit www.ebglaw.com. For more than three decades, the EpsteinBeckerGreen seminar series has introduced senior executives, general counsel and human resources professionals to cutting-edge issues in nearly every area of business touched by law.
 

 

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Hilton In Naples, FL Signs Up For The IMAGE Program

 

On May 26, 2010, the Hilton Naples signed an agreement with U.S. Immigration and Customs Enforcement (ICE) to participate in the voluntary IMAGE program. This is the first company in the city of Naples, Florida to sign up for the IMAGE program. IMAGE, or ICE Mutual Agreement between Government and Employers, is a government initiative designed to improve employer self-compliance. Employers participating in IMAGE must submit first to a Form I-9 audit by ICE and verify all of their employees' social security numbers through the Social Security Number Verification System (SSNVS). Employers are also obligated to  sign up for E-Verify, conduct I-9 audits semiannually using a neutral party, ensure that only trained employees complete Form I-9 and use E-Verify, set protocols for responding to no-match letters, and much more. Employers using E-Verify must sign a Memorandum of Understanding or MOU which requires them to allow ICE (DHS) and SSA or their authorized agents or designees to "make periodic visits" to the employer.

IMAGE is NOT a “safe harbor” for employers. ICE has not indicated that IMAGE “partners” will not be subject to enforcement actions. Moreover, E-Verify participants have been subject to worksite enforcement actions. Given ICE’s inspection powers under IMAGE an employer should seriously consider the consequences of implementing these practices.

ICE Expands Worksite Enforcement Activities in the Southeast

On Tuesday, March 2, 2010, the U.S. Department of Homeland Security (“DHS”) announced that it was expanding its worksite enforcement strategy in the Southeastern United States. As part of this strategy, the U.S. Immigration and Customs Enforcement (“ICE”), the agency within DHS directly responsible for worksite enforcement, indicated that it is issuing Notices of Inspections (“NOIs”) to 180 businesses in Tennessee, Alabama, Arkansas, Louisiana and Mississippi.

These NOIs alert the businesses that ICE will be inspecting their Form I-9s and seeking to review voluminous other business records, including a list of current and terminated employees with hire and termination dates; the names, social security numbers and dates of birth of all active employees; quarterly wage and hour reports and/or payroll data on all employees covering the period of inspection; quarterly tax statements; all correspondence with the Social Security Administration (including “No-Match” letters); and more! All of this is an effort by ICE to determine whether the businesses are complying with federal employment eligibility verification laws and regulations. This DHS announcement is the latest in a series of expanding worksite enforcement efforts by the Obama administration. Instead of raids, the Obama administration has focused its efforts on auditing and investigating employers to determine if they are satisfying the Form I-9 requirements and are knowingly or unwittingly employing illegal workers.

Hector Chichoni, the Chair of EBG’s Southeastern Immigration Practice, notes: “this action by ICE underscores what the Immigration Law Group at EBG has been advising clients since the Obama administration took office. Businesses need comprehensive employment verification and related compliance plans in place because the civil and potentially criminal consequences of this enforcement strategy can be severe. Businesses that ignore this important aspect of their operations can face substantial fines that make compliance now not only good corporate citizenship, but also good risk management.”

These ICE inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. The fines for simple Form I-9 violations range from $110 to $1,100 per violation, with the higher range applicable to employers with a higher percentage of mistakes. Employers with large workforces that fail to properly manage the Form I-9 process can face fines of hundreds, or even millions, of dollars. Employers and their managers also can face criminal prosecution if they deliberately neglect their legal responsibilities in this area. This latest ICE action in the Southeast underscores the need for all businesses to review this important aspect of their operations, develop compliance plans that will protect them from this potential liability and have in place crisis management procedures, including access to outside counsel that specializes in this area, in the event that the “ICEman” cometh!

 

Webinar: Employers Targeted in Immigration Crackdown: How to Audit Policies Before ICE Does

On September 3, Hector A. Chichoni will be teaching the webinar Employers Targeted in Immigration Crackdown: How to Audit Policies Before ICE Does

Hector has counseled employers on the proper use of the new I-9, work site enforcement, "no-match" problems, and compliance with state and federal immigration laws

Thursday, September 3, 2009
11:00 a.m. to 12:30 p.m. Eastern
10:00 to 11:30 a.m. Central
9:00 to 10:30 a.m. Mountain
8:00 to 9:30 a.m. Pacific

On July 1, 2009, U.S. Immigration and Customs Enforcement informed hundreds of U.S. businesses that agents would be auditing their I-9s and other hiring records. And just this April, the Obama administration issued new guidelines for ICE agents to change the enforcement focus to employers.

Learn what action you can take NOW to keep ICE from targeting your organization and your first course of action if your company is audited by participating in the all-new HR Hero audio conference, Employers Targeted in Immigration Crackdown: How to Audit Policies Before ICE Does.

Hector A. Chichoni will show you the specific red flags agents are looking for in ICE audits, as well as:

The tell-tale signs ICE may be targeting your organization
Your first recourse if enforcement agents arrive on site
The potential consequences when ICE agents audit your records
Typical fines and other actions immigration enforcement agents are taking against violators
Your legal options if fines are levied against your organization
Your first course of action if you have workers who can’t prove they’re authorized to work in the United States
How ICE's new audit strategy could impact whether E-Verify becomes mandatory for all employers
What employers can expect from future immigration compliance and enforcement initiatives
What every employer needs to know about immigration reform efforts

All receiving this information will be entitled to a 20% discount on the audio conference. To receive the discounted rate, you will need to call HR Hero customer service department at 800-274-6774 and mention code M899.

U.S. Senate Approved Several Amendments Dealing With Immigration Enforcement Not Included In The 2010 Homeland Security Appropriations Bill (H.R. 2892)

On Wednesday, July 8, 2009, the Senate approved several amendments dealing with immigration enforcement and benefits which were not included in the 2010 homeland security appropriations bill (H.R. 2892) passed previously by the House. An amendment introduced by Senator Jeff Sessions (R-Ala) dealing with E-Verify was passed by a voice vote after a motion by Sen. Schumer (D-NY) to table it was rejected 44 to 53. Sen. Sessions’ amendment is extremely important because it could make the voluntary E-Verify program, in its present form, permanent and mandatory for all federal contractors beginning September 8, 2009.

The final federal contractor’s rule, which extends the use of E-Verify to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds, came as a result of Executive Order 12989. The rule was originally scheduled for roll-out last January 15, 2009, but had to be postponed because of a lawsuit filed by the U.S. Chamber of Commerce in the U.S. District Court for the District of Maryland challenging the legality of the rule.

The version of the bill passed previously by the House on June 24th would extend the E-Verify program for only two years. Thus, the existing differences between the amended version passed by the Senate and the House bill will have to be reconciled and a final version will need to be agreed upon in conference before changes can take effect.

Secretary Napolitano announced early on July 8th the department’s intention to rescind the controversial No-Match Rule in favor of the “more modern and effective” E-Verify. In a surprising but decisive response, the Senate also adopted an amendment from Senator David Vitter (R-LA) that would prohibit the U.S. Department of Homeland Security (“DHS”) from using any Fiscal Year 2010 appropriated funds to rescind the No-Match Rule.

Sen. Schumer, who led the effort to table Sen. Session’s amendment, stated that declarations made earlier by DHS Secretary Janet Napolitano that the Administration would support a regulation that requires employers to use E-Verify in order to be awarded federal contracts had rendered the amendment “moot.”

However, the real reason for Sen. Schumer’s opposition is that the present administration wants to enact immigration compliance laws that target employers and, Republicans, now the minority in the Senate, want to enact immigration compliance laws targeting employees. But in a surprising move, supported by a few Democrat senators, all amendments dealing with immigration enforcement offered by Republicans were approved.

More concerning for employers, however, is the apparent administration’s pursuance of a more capable and technologically advanced version of E-Verify. Sen. Schumer has stated repeatedly that E-Verify does not “go far enough” and made clear in several occasions that he favors a hi-tech employment verification system which employs biometric identifiers such as fingerprints, eye scans, and more. Similarly, Secretary Napolitano, who believes E-Verify is a “smart, simple and effective tool” has also made clear, in agreement with Sen. Schumer that “we need to continue to work to improve E-Verify, and we will.”

These declaration not only indicate that the Obama administration and key democratic leaders in Congress share the view that immigration compliance should target employers, but also, as it would appear, through the use of an “improved” or, in other words, a more capable and technologically advanced E-Verify that could include not only biometric identifiers, but also information sharing capabilities linked to other governmental agencies. 

The possibility of an “improved” version of E-Verify does not seem far-fetched when considered in light of present existing Memorandums of Understanding between governmental agencies which already allows for information sharing, past joint raids, and an appropriations bill which provides for $5.4 billion to fund DHS’s employment verification activities.

Further, such “improved” E-Verify, despite the potential tremendous governmental invasion into the workings of private institutions, could give the Obama administration a serious “footing” in dealing with millions of illegal immigrants, which can be “politically” cashed at a later time. 

So far it is unclear what immediate effects the Sessions and Vitter amendments would have if enacted. Both the federal contractor and No-Match Rules are currently suspended due to ongoing litigation.

Krispy Kreme Doughnuts, Inc. Fined For Hiring Foreign Workers Not Authorized For Employment

Tuesday ICE stated that last Friday Krispy Kreme reached a $40,000 fine settlement with the government for violating U.S. immigration laws by hiring illegal worker. ICE stated that an inspection at a Krispy Kreme factory in Cincinnati  revealed that the company employed many foreign workers who were not authorized for employment. The inspection also showed that the company did not have the required paperwork for all workers at the factory. As part of the settlement, Krispy Kreme has taken measures to revise its immigration compliance program, and has agreed to begin implementing new procedures to prevent future violations of federal immigration laws, ICE said.

H-1B Worker Wins Injunction Requiring Employer Sponsorship

On June 11, 2009, a federal district court issued an injunction that required the University of Pittsburgh to sponsor a Russian biologist for an H-1B extension and continue her employment until her claims of discrimination in her discharge can be resolved. Karakozova v. University of Pittsburgh, No. 09-cv-0458 (W.D. Pa. June 11, 2009). The Karakozova decision represents the latest decision that injects the courts into what previously had been considered the employer’s unlimited discretion in sponsoring an employee for any immigration benefit, including H-1B classification. We reported last year on the Lionbridge decision, in which the 10th Circuit found that the employer violated a fiduciary obligation created by its vague immigration sponsorship policy by failing to sponsor an H-1B employee for permanent residence. These decisions unfortunately appear to represent increased judicial intervention into an employer’s sponsorship decisions and thus place a premium on the organizational policies that define the employer’s obligations in this area.

Alert: ICE Serves 652 Businesses Nationwide With Notices of Inspection

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 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.


 

New York Supreme Court Allows Jury to Consider Undocumented Alien's Immigration Status in Valuing Tort Claim for Lost Wages

On June 12, 2009, the Supreme Court of the State of New York, Bronx County, issued a decision that allowed the plaintiff, an undocumented alien who was pursuing a tort claim, to offer evidence of probability that his asylum application would succeed so the jury could evaluate his claim for lost wages. Maliqi v. E. 89th Street Tenants, Inc., Index No. 23309/06 (Sup. Ct. Bronx Cty. June 12, 2009). Under the federal immigration laws, undocumented aliens are not allowed to work. In tort claims where lost wages are concerned, defendants often attempt to use the plaintiff’s illegal immigration status as an absolute legal bar to recovery. In most states, the courts will allow recovery for back wages on the theory that the employer should not benefit from the employee’s labors, especially if its lax application procedures allowed the employee on the organization’s payroll. The issue of how to handle claims of lost future earnings has resulted in different approaches in the various states. Most states agree that an individual’s undocumented status is not an absolute bar to recovery. This is especially the case where the employer either knew of the employee’s lack of work authorization or did not have procedures in place to properly evaluate that work authorization. E.g. Balbuena v. IDR Realty, 6 NY 3d 338 (2006). The question is how does the plaintiff prove that he is legally entitled to the lost future earnings claimed? In the Maliqi decision, the court recognized that the plaintiff’s immigration status was a relevant consideration on any lost future earnings claim. If he remained undocumented, then he had no legal right to future wages. If his asylum claim was granted, however, he might. In a novel approach, the court resolved this conflict by allowing the plaintiff to offer evidence to the jury regarding the likelihood of success for his asylum claim. In essence, the court held that the length of time during which the plaintiff might continue legally earning wages in this country and the prospect of his deportation are factual issues for the jury to determine. (From EBG's Immigration Newsletter)

RICO Immigration Litigation on the Rise

The Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§1961 et seq. (RICO), is gaining popularity as a tool by the federal government, employees, competitors and others to combat immigration law violations. The resort to RICO rests in large part on the federal government’s failure to pass comprehensive immigration reform. The attractiveness of RICO as a civil or criminal claim results from its stiff penalty provisions. Successful civil plaintiffs can recover treble civil damages, reasonable counsel fees and injunctive relief if they can prove that the damages they suffered resulted “by reason of” the defendant’s immigration violations. The government finds RICO well-suited for criminal prosecutions in this area because of the ease with which it can prove conspiracy claims and thus connect illegal activities by several defendants. The Askarkhodjaev indictment, for example, contained several RICO counts. During the last month, two class action decisions were issued by the federal courts that emphasized the increased reliance on RICO as a remedy for immigration violations. On May 18, 2009, a federal court in the Eastern District of California granted class certification of RICO claims brought by employees who alleged that the employer, a food-processing company, had depressed their wages by engaging in a pattern of racketeering activity by knowingly hiring undocumented workers at low wages. Brewer v. Salyer, No. 06-1324 (E.D. Calif. May 18, 2009). On May 28, 2009, the United States Court of Appeals for the Eleventh Circuit reversed a district court decision that had denied class certification to the plaintiff employees who sued Mohawk Industries, Inc. claiming that it violated RICO by hiring undocumented workers to drive down their wages. Williams v. Mohawk Industries, Inc., No. 08-13446 (11th Cir. May 28, 2009). The Mohawk litigation has had a long and tortured history in the federal courts. It began in January 2004, and several issues have been on appeal to both the 11th Circuit and the U.S. Supreme Court. As a result of this decision, however, Mohawk now faces the prospect of treble damages if found liable to the thousands of employee plaintiffs that comprise the class. (From EBG's Immigration Alert)

 

USCIS Issues Guidance on Employment Eligibility Verification Form: Form I-9 Remains Valid Beyond Current Expiration Date of June 30, 2009

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that the Employment Eligibility Verification form I-9 (Rev. 02/02/09) currently on the USCIS Web site will continue to be valid for use beyond June 30, 2009. USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire. USCIS will update Form I-9 when the extension is approved. Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.

U.S. Department of Homeland Security Issues A Second Fact Sheet On Secretary Napolitano's Approach To Worksite Enforcement

On April 30, 2009, the U.S. Department of Homeland Security, Immigration and Customs Enforcement (“ICE”), issued a second fact sheet with a brief overview of Secretary Napolitano’s approach to worksite enforcement. The fact sheet emphasizes that:

1.  ICE will continue “to arrest and process for removal any illegal workers found in the course of worksite enforcement actions in a manner consistent with immigration law and DHS priorities.”

2. ICE will “use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.”

3. Like “other white collar crimes, ICE worksite enforcement cases can be complex and lengthy, sometimes requiring months or even years of follow-up investigation.”

4. In “many instances, these cases not only involve violations of the Immigration and Nationality Act (INA), but frequently reveal a host of other crimes, such as alien smuggling, document fraud, identity theft, money laundering, and wage and labor violations.”

5. The “leads that spark a worksite investigation come from an array of sources - tips from the public, reports from a company’s current or former employees, even referrals from other law enforcement agencies.” And that,

6. Once “a lead is received, ICE agents will employ a variety of techniques to investigate the allegations, including the use of undercover agents, confidential informants, cooperating defendants, and surveillance.”

The new fact sheet makes a few additional revealing points. As I predicted, first and foremost the government’s approach to worksite enforcement, as applicable to employers, will be from a “white collar” perspective.  But only "administrative" when applicable to undocumented workers.  Moreover, ICE will focus only on issues from which it can haul up criminal charges against the employer to justify its criminal investigative techniques. ICE will not only share information but also conduct joint investigations with other governmental agencies. Very importantly, “leads” will also come from electronic employment verification programs such as E-verify and the like. 

We will continue reporting and keeping you updated on worksite enforcement developments. 

DHS Issues a Fact Sheet on New Worksite Enforcement Strategy

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.

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."

Reductions in Force and Employees in H-1B Status--What HR Needs to Know

By Hector A. Chichoni, Copyright Society of Human Resource Management ("SHRM"). Printed with Permission.

Due to present hard economic conditions U.S. employers are carrying out reductions in force (RIF) at a higher rate of frequency than at any other time in the last 30 years. RIFs, however, are not uncommon; they also take place during good times through mergers, company restructurings, buyouts, sellouts and more.

This article will show HR personnel what they need to know to keep their employers compliant when going through a RIF affecting foreign workers in H-1B status and to identify a few available strategies that may ameliorate their employers’ potential liability.

Reductions in Force and H-1B Status Holders

The general rule is that once the foreign national worker’s employment is terminated, so is his/her H-1B visa status. As a direct consequence of the principal visa holder’s termination, family member dependents holding derivative H-4 visas will also lose their status. Regardless of the fact that their Form I-94, Arrival/Departure Record may not yet be expired, the H-1B holder and his/her dependents will be out of status as of the last day of the principal visa holder’s employment.

Many foreign employees in H-1B status think there is a “grace period” after the expiration of their status or stay. A large number of foreign workers also believe that if they are part of a RIF, layoff, get fired for cause, terminated[1] or even resign[2] that there is a “grace period” that would allow them to find a new H-1B sponsoring employer. Contrary to their belief, there is no such thing as a grace period. Further, the U.S. Citizenship and Immigration Services (USCIS) has stated that an H-1B nonimmigrant status holder present in the U.S. even during the “severance period,” will not be considered to be maintaining status. To maintain status, the employer and the foreign national employee must maintain a “bona fide” employer-employee relationship.

As a matter of practice, however, if the period between the time in which the foreign national employee fell out of H-1B status and the time in which the new employer filed an H-1B petition is brief,[3] the USCIS may, upon its discretion, overlook the employee’s failure to maintain status and approve an H-1B extension and change of employer.

Given the serious consequences that RIFs have on H-1B nonimmigrant status holders, it is imperative that employers consider these effects prior to initiating a RIF. The employer may wish to consider providing advance notice of the termination to the employee in H-1B status to allow him/her a reasonable period of time to find another sponsor and advise him/her to seek the counsel of an experienced immigration attorney to minimize the impact of the termination.

Moreover, for purposes of termination, RIFs can be so final for H-1B status holders that, only with few rare exceptions, and even when the employer has already paid into the state unemployment system, the foreign national employee cannot file or qualify for unemployment benefits due to the lack of work authorization resulting from the termination.[4]

Once the principal H-1B visa holder is out of status, nothing can prevent the government from detaining, instituting removal proceedings, and even removing them from the United States. Therefore, terminated foreign national employees in H-1B status should seriously consider quickly finding an employer who would be willing to sponsor them for H-1B status, changing to another nonimmigrant status that will allow them to continue staying in the U.S., or leaving the country immediately.

Employers also should consider that when an H-1B holder’s employment is terminated while the company is pursuing a “green card” application before he/she is granted permanent resident status, for all practical purposes, the permanent residence case ends without the employee being able to obtain the green card. Only if the foreign national employee is at the “third stage” of his/her green card application, with an unadjudicated I-485 Adjustment of Status application pending with USCIS for 180 days or more may the employee still be able to secure a green card. The employee may be able to secure the green card by either changing jobs or employers to preserve the green card process, or continue the process with the same employer-sponsored green card case, in spite of the employment termination, if the sponsoring employer does not withdraw the unadjudicated underlying immigrant worker petition and still intends to hire the individual upon adjudication of the I-485.

U.S. employers must walk a very fine line in the context of structuring RIF because it is considered an unfair immigration-related employment practice for a person or entity to discriminate against any individual because of his/her national origin or citizenship.

RIFs also bring a significant increase not only in the number of claims against employers, but in the number of complaints filed with the U.S. Department of Labor (DOL) and the U.S. Department of Homeland Security’s Immigration and Customs Enforcement (ICE) by RIFed employees. Complaints filed against employers with DOL and ICE can trigger not only audits but also investigations which can culminate in fines and penalties, and even criminal charges for the egregious violators.

Employers, and thus HR, will typically have very little advance notice of DOL or ICE investigations and audits. Therefore, it becomes more important for employers to properly maintain and keep accurate corporate immigration records. As the saying goes, an ounce of prevention is worth a pound of cure. Nothing could be truer in the area of immigration corporate compliance. Employers should implement clear and effective immigration policies in their employer handbooks. Employers should maintain and retain all pertinent records as well as conduct periodic internal audits along with the implementation of corrective actions to ensure that they are in full compliance with all applicable immigration laws, rules and regulations, which in the end, will defend itself in the event of a government audit or investigation.

In general, ameliorating the impact of a RIF on a foreign national employee may not be mandatory for employers,[5] but it always makes sense from a business perspective to avoid potential claims against them. Claims made by H-1B nonimmigrant status holders, depending on the claim, can also be protected by “whistle-blower” and Fair Labor Standards Act laws.

Given the harsh consequences, RIFs can have a large impact not only on employees holding H-1B status, but also on employers. U.S. employers will be well served by working with HR during the planning phase of the RIF.

Immigration Obligations for Employers of Employees in H-1B Status

Employers of H-1B visa status holders must comply with certain specific obligations acquired through the filing of an H-1B visa petition with the government.[6] DOL laws, rules and regulations make clear that in order for an employer to have carried out a “bona fide” termination, and thus, disclaim potential liability, the employer must notify the USCIS of that termination, provide the foreign national employee in H-1B status with a “reasonable costs of return transportation,” and notify the H-1B status holder employee, in a clear and effective way, about his/her termination. In addition, employers must also comply with other basic obligations directly related to employing foreign workers in H-1B status.

Notify U.S. Government About H-1B Status Holder’s Termination

Under U.S. immigration law employers are required to notify the U.S. government of “any material change” to the terms and conditions of an approved H-1B petition that may affect the eligibility of the beneficiary to that visa category. Termination is considered a material change. Notifying the government is not only a requirement under the law but also a good idea. Notifying the government immediately is also effective for purposes of limiting a claim for unpaid wages for a period covering after the individual is terminated. Thus, in order to prevent or stop the back wage obligation for such H-1B workers, it is necessary to terminate the employee and send a withdrawal notification to the USCIS. The DOL considers the H-1B worker’s wages to be a responsibility of the employer until the date that the USCIS receives a written request to withdraw the relevant H-1B petition.

Similarly, employers must notify DOL about the termination (withdraw) of the Labor Condition Application (LCA) filed with the H-1B visa petition.

A typical notification sent by the employer can be a letter on company letterhead, or the attorney’s letterhead if represented by an attorney, clearly referencing the petition number, employer’s contact information, and beneficiary’s name and date of birth via U.S. certified mail. Employers can include with the letter a clear color copy of the individual’s Form I-94; Form I-797, Approval Notice; and, even when not required, a copy of the H-1B visa.

Although there is no requirement per se to inform the U.S. consulate that issued the H-1B visa about the individual’s termination, some immigration practitioners consider it a good idea to send a copy of the above packet, either via U.S. mail, or as a PDF attachment via e-mail, directed to the U.S. consulate’s nonimmigrant visa unit or the fraud prevention unit. This practice could assist employers in disclaiming any potential liability for any future wrongdoing involving the use of the visa.

Provide H-1B Status Holder Employee with Reasonable Costs of Return Transportation

Employers of H-1B status holders have an obligation under the immigration statute to provide the foreign national employee with “reasonable costs of return transportation” if the “involuntary” termination of the H-1B status holder was effective before the expiration date, as shown on Form I-94, of the period of authorized stay. This obligation falls upon the present employer of the foreign national employee or the last employer before the termination. Paying the cost of transportation neither extends to the foreign national employee’s dependents living with him/her in H-4 status, nor to paying for the transportation of his/her household belongings.

A word of caution, the employer’s mere offer to pay the foreign national employee’s “cost of transportation” may not be enough. Providing the actual airfare, one-way nonrefundable ticket to the home country or last place of residence, should meet the requirement. It is a good practice to obtain either a signed acknowledgment of receipt from the beneficiary that he/she indeed received the return cost of transportation, or that the beneficiary, upon being presented with return costs of transportation, declined the employer’s offer. The employer cannot force the individual to exit the United States and has no obligation to report the individual to ICE if the individual, of his/her own volition, decides to stay beyond the date of termination. Thus, it is imperative that the employer effectively document and create an evidentiary trail that it has complied with its obligation of paying the return costs of transportation. Again, employers should develop and implement corporate immigration policies that define their obligations. These policies should be part of their employee handbook.

Continue to Pay H-1B Status Holder Employees Required Wages Until Termination

An employer’s obligation to continue paying the required wage to the employee in H-1B status ends upon effective and clear or “bona fide” termination of the employer-employee relationship. Therefore, it follows that an employer must not only provide the H-1B status holder employee with clear and effective notice of his/her termination, but also must carefully document the termination with clear and accurate records to protect itself.

The payment of the required wage must be in accordance to what the employer promised when it filed the LCA for certification with the DOL.[7] The LCA requires by attestation that the employer will pay the H-1B workers the higher of either the prevailing or actual wage[8] during their employment.[9] The LCA also prohibits “benching”[10] the employee if the employer does not have a sufficient amount of work.

DOL has authority to enforce the H-1B wage obligations and may impose fines and penalties on employers that fail to comply with this requirement.

Employers’ Employment Verification Compliance Obligation

The employer’s termination of the employer-employee relationship through a RIF does not end its obligation to continue maintaining and retaining its Form I-9, employment eligibility verification records. The employer must retain Form I-9 for each employee for either three years from the date employment begins, or one year after the date employment is terminated, whichever is later.

Employers must consider that a RIF often breeds not only lawsuits from disgruntled former employees, which can include former foreign national employees, but also potential complaints to various governmental organizations such as DOL and ICE, which may lead to an audit or investigation of the employer’s records. It is therefore, a good practice to purge all I-9 forms that are not required to be kept under the law.

The DOL has some discretion, once it has conducted an investigation, as to the types and levels of penalties that can be assessed. There may be less harsh consequences for past violations, if there is evidence of current compliance. Employers must show good faith to avoid harsher penalties.

Employers are also responsible for, and must ensure, adequate training of human resources professionals to ensure compliance with corporate policy and immigration law. A thoughtful I-9 compliance policy and careful management of I-9 records will put employers in a better position should DOL or ICE decide to audit or investigate them.[11]

Employer’s Public Access File Compliance Obligation

Employers of H-1B employees are required by DOL regulations to make a certified (filed) LCA, along with all necessary supporting documentation, available for public examination at the employer’s principal place of business in the United States, or at the place of employment within one working day after the date in which the LCA is filed with the DOL.

Employers must retain this documentation (in tandem also known as the “Public Access File” (PAF) or “Public Inspection File” (PIF) for a period of one year beyond the last date on which any H-1B nonimmigrant is employed under the LCA or, if no H-1B nonimmigrants were employed under the LCA, one year from the date the LCA expired or was withdrawn. Ensuring proper document retention is particularly important in an economic downturn. With limited exceptions, government investigations of immigration compliance are often initiated by the DOL or by ICE as a result of a complaint made by a former employee.[12]

Compliance Issues Relating to Receipt of Stimulus Plan Funds

The law states that businesses receiving money under the stimulus package’s Troubled Assets Relief Program (TARP) will be subject to the rules that currently govern H-1B-“dependent” U.S. employers.

DOL requires that H-1B dependent U.S. employers take additional steps when hiring new H-1B foreign workers. These steps require U.S. employers to attest that, in addition to the normal attestation requirements found in the LCA, they have, among other requirements:

(1) Taken good faith steps to recruit for the position in the U.S. using industrywide standard practices.

(2) Offered, at minimum, the prevailing wage during recruitment efforts.

(3) Offered the job to any U.S. worker who applies that is equally or better qualified than the H-1B worker.

(4) Not displaced U.S. workers employed within a period beginning 90 days before and ending 90 days after the date of the filing of the H-1B petition.

Since this is a new area of compliance, it would be advisable for U.S. employers receiving TARP funds to keep constantly informed and updated.

RIFs, Government Audits and Investigations

Government agencies usually initiate audits or investigations in connection with an immigration compliance issue when there is a complaint made by a disgruntled employee or a tip. A significant number of audits and investigations are triggered by complaints made by RIFed U.S. citizens, green card holders and even nonimmigrant visa holders. Agencies can also initiate investigations on their own and with less than probable cause.

For purposes of LCA issues, the appropriate agency will be the DOL, Wage and Hour Division. As far as I-9 issues, ICE will be the agency responsible for conducting audits and investigations. Both agencies are responsible for conducting the initial review of the merits of respective complaint in order to determine if an investigation is warranted.

If the agency decides to proceed with the audit or investigation, the U.S. employer generally will be notified by letter or phone call by an investigator or officer that he/she would like to come to the employer’s offices to review the immigration-related documentation that the employer is required to maintain. Often, investigators do allow employers to send the documents the agency wishes to review to the agency’s office. In addition to reviewing the I-9 forms or the LCA PAFs, the investigator might also ask to review payroll records to ensure, among other things, an accurate account of employees, their names, Social Security numbers and that the required wage is being paid to foreign national employees. As stated, investigators usually will give employers very little time to either produce or permit inspection of the records.

A new technique ICE has been using, and will continue to use in the upcoming years, to audit and investigate U.S. employers is the so called “inspection.” Employers that have entered into Memorandums of Understanding (MOU) with a government agency to participate in some sort of electronic immigration compliance program (e.g., E-Verify) need to be aware that these MOUs grant permission for the agency to come unannounced to the premises and conduct an inspection. The work inspection is not defined, and therefore has no limit. It can include employment eligibility verification through the use of the agency’s own electronic systems and devices (without even touching the employer’s I-9s), criminal and customs searches, and much more. The inspection team can even include members of other agencies also under the U.S. Department of Homeland Security’s umbrella such as the Transportation Security Administration.

Since Sept. 11, 2001, the government has exponentially increased security measures and electronic initiatives to address national security concerns. The increase in the government’s immigration policies and electronic systems has manifested itself in a resurgence of government audits, inspections, raids and criminal investigations of U.S. employers. Government search warrants, worksite raids and audits have become standard investigative tools to assist in the enforcement of immigration laws. These systems make it easier for the government to detect not only wrongdoing, but also simple failure to comply with the law.

Under Secretary Janet Napolitano, possibly in association with other governmental agencies (e.g., the Internal Revenue Service, DOL, and the Social Security Administration), the number of government audits and inspections will continue, and probably, increase. Technology based programs such as E-Verify could become mandatory for all U.S. employers.

In conclusion, it will be important to caution that while it is often appropriate to take remedial actions such as filing H-1B petition amendments and new LCA, paying back wages, and organizing documentation, including I-9 forms to fix future problems, employers should never attempt to cover up the problems. Therefore, it will be important for employers to be in compliance at all times, especially, when going through a RIF.

Hector A. Chichoni is an attorney at Epstein Becker & Green PC in Miami. Chichoni (hchichoni@ebglaw.com) is South Region chairperson of the firm’s Immigration Law Group.

[1]The U.S. Citizenship and Immigration Services (USCIS) makes a very important distinction between layoff and termination. Layoff for USCIS is more closely related to “benching,” a period of nonproductive status for which the employer is completely responsible as opposed to a period of nonproductivity for which the H-1B beneficiary is responsible, i.e. medical leave, vacation, etc. Termination refers to a clean and effective severance of the employer-employee relationship, therefore resulting in the loss of the principal’s H-1B status. Because USCIS may consider laid-off H-1B visa holders as still maintaining status with the same employer (i.e. during the economic or work slowdown), a beneficiary may continue to reside in the U.S. and maintain lawful nonimmigrant status in spite of being laid off provided that the employer continues paying the beneficiary the required wage during such nonproductive periods. HR professionals, however, are encouraged to find sound legal advice when dealing with this complex area of the law.

[2] Under the American Competitiveness and Workforce Improvement Act of 1998, if the employee in H-1B status resigns, the U.S. employer cannot require him/her “to pay a penalty for ceasing employment with the employer prior to date agreed to by the nonimmigrant and the employer.”

[3] Some offices and officers have allowed up to 30 days between the individual’s falling out of H-1B status and the filing of the new employer’s H-1B petition; others up to 60 days and even longer periods of time. This practice has created a great deal of confusion among practitioners and HR. Further, the Jan. 21, 2009, USCIS—Vermont Service Center (VSC) liaison minutes (AILA Doc. No. 09012768), stated that “VSC discussed the impact of a revocation of an H-1B petition on H-1B portability. VSC indicated that in order to be eligible to ‘port’ to a new H-1B employer, the new petition must be filed before the old petition is revoked or withdrawn by the old employer. VSC did not state that the H-1B nonimmigrant had to be currently maintaining status with the old employer to be eligible for portability, nor did VSC indicate that it would not exercise discretion allowed under 8 C.F.R. § 214.1(c)(4) in favor of an extension of status.”

[4] The discussion of H-1B status holders qualifying for unemployment often, although not related, brings up the question from HR as to whether once a terminated H-1B status has fallen out of status, he/she is able to qualify for workers’ compensation benefits. The answer seems to be that they are. Out-of-status individuals are eligible for workers’ compensation in 30 states and probably covered in 19 other states.

[5] Under California law employers may have an obligation to ameliorate the impact of a terminated H-1B status holder where there is a reasonable alternative. Employers should consult labor and employment and immigration lawyers on this issue.

[6] Employers acquire certain specific obligations under U.S. immigration law when filing an H-1B petition on behalf of a foreign national. However, additional responsibilities may be acquired under the laws of the state in which the employer operates or where the foreign national employee works, as a flurry of states have enacted immigration laws and state courts, under certain conditions, have deemed H-1B petitions to be employment contracts.

[7] One important issue is that the employer must pay the required wage as of the first day of the beneficiary’s employment. Paying the correct required wage as stated in the LCA from the beginning of beneficiary’s employment could avoid future problems in terms of possible back wage complaints against the employer. DOL follows the 30/60-day rule. That is, the employee in H-1B status must be put on the employer’s payroll and be paid the required wage stated on the LCA by or on the 30th day from the moment the employee entered the United States. However, if the employee in H-1B status has been in the U.S. since the H-1B petition was approved, he/she must be paid the full required wage stated on the LCA by or on the 60th day after the date when the employee became eligible to work for the U.S. employer.

[8] Employers are required to pay the higher of either the actual or prevailing wage. The actual wage is the wage paid to other co-workers in similar positions. The prevailing wage is the average salary paid to workers in the area of intended employment.

[9] Any reduced salary or wage during the validity of the LCA is considered a violation of DOL regulations and can lead to an assessment of back wages and possible fines. The DOL could also seek back wages covering the period from when an H-1B worker was last paid to when USCIS receives a written withdrawal request for the H-1B petition. If the employer waits several months to send the withdrawal request, and does not have other clear proof of the termination of employment, there can be an assessment of back wages.

[10] “Benching” is the term used for “temporarily” laying off an employee or putting the employee in nonproductive status without pay or at a “reduced” pay during the period he/she is not working. The employer, however, is not required to pay if the nonproductive period is due to “conditions unrelated to employment” at the employee’s “voluntary request and convenience” (i.e. caring for a sick relative, maternity leave, etc.) which renders the H-1B status holder employee unable to work. A word of caution, employers should not try to use this provision as a disguise for benching, since it could amount to fraud or misrepresentation.

[11] Penalties for I-9 employment eligibility verification violations can range from $250 to $3,000 just for improper completion of the form. Penalties for technical and substantive, retention, and for not making timely available for inspection the I-9s can range from $100 to $1,100 for each violation. Penalties for knowingly hiring or continuing to employ unauthorized workers fines range from $250 up to $11,000 per violation. If a company shows a pattern of hiring unauthorized foreign workers, the company could also be liable for criminal charges and penalties of as much as $3,000 per worker or employee and/or six months of imprisonment. In this area of the law, ICE has considerable discretion assessing fines. When assessing fines, ICE looks at the size of the company, the seriousness of the violations, good faith efforts, and to past violations, if any.

[12] If the employer does not comply with LCA regulations, DOL will issue a finding that the employer has violated LCA requirements. Examples of such a finding can include “willful” failure to pay the required wage rate or “substantial” failure to post a notice of the LCA filing. For filing an LCA which is found to misrepresent a material fact, civil money penalties can be imposed up to US$1,000 per violation, and debarment from the H-1B program. DOL can impose additional fines up to US $35,000 and five years imprisonment for criminal violations related to LCA practices.

Today the U.S. economy employs a large number of professional foreign workers, perhaps more than at any other time in its history. Given this large number of foreign workers in the U.S., RIFs are more likely to involve the termination of workers holding H-1B nonimmigrant visa status.
 

Immigration Enforcement Under Napolitano: A 180 Degree Shift To Employers

One of my articles,  Immigration Enforcement Under Napolitano: A 180 Degree Shift To Employers, was recently published by ILW.  I am reproducing it here in its entirety for your perusal: 

"President Obama made it clear that his immigration plan, among other things, was to "remove incentives to enter illegally." However, the Obama administration has not provided any details as to how is going to accomplish this portion of its plan. This has not only created a good amount of speculation, but also a good deal of frustration among U.S. employers. Yet, in spite of lacking details, the Obama administration has sent out "immigration signals" and U.S. employers should be prepared.

The most important of these immigration signals, perhaps, was Secretary Napolitano's appointment as head of the U.S. Department of Homeland Security (DHS). The appointment reveals some of the most basic immigration strategies of the administration's plan. This is not only part of a well calculated move, but, as it would appear, the foundational step necessary to set President Obama's immigration plan in motion.

Secretary Napolitano is considered a smart and demanding attorney with an intense work habit and a quick grasp for bureaucratic detail. A twice elected Governor of Arizona and a former Attorney General and U.S. attorney, she is not only a pragmatist who signed the toughest state immigration law in the nation, but also a politician with clear enforcement views. She is one of the most experienced state executives in the nation in the immigration arena and one of the very few high ranking democrats qualified, should one be enacted, to handle a comprehensive immigration reform loaded with compliance and enforcement requirements.

She has repeatedly called for a "technology-driven border control" and the penalizing of employers hiring undocumented workers.

Secretary Napolitano has indicated that her approach, in terms of immigration raids, will be to closely watch the design of the operations and that the focus will be on "unscrupulous employers" rather than on undocumented workers. She has also stated that raids will continue where undocumented workers are present and that she expects to increase the focus on ensuring that employers "of unlawful workers are prosecuted for their violations."

Moreover, Napolitano has pledged to increase the focus on criminal punishment for employer violators and to encourage them to work with federal immigration agents to "establish sound compliance programs that prevent unlawful hiring." She also aims to continue boosting manpower on the borders and the use of technology. At the same time, she has stated that her full intention is to enforce these methods in a fair manner across borders, ensuring that the law is applied. This, of course, represents a 180 degree shift from the Bush administration's approach to immigration enforcement, which sought to penalize undocumented workers, rather than prosecute employers.

In short, comprehensive immigration reform, whether in piece-meal or in one whole act, will be enacted. Employers will continue to be raided, but enforcement actions are likely to conform to those prescribed under immigration law rather than the "DEA-type" actions with all their inefficiencies and social negative effects seen under the Bush administration. Under Secretary Napolitano, possibly in association with other governmental agencies (i.e. IRS, USDOL, SSA, etc.), the number of government audits and the so called ICE "inspections" will continue and, possibly, increase. Investigations conducted by the FDNS (Office of Fraud Detection and National Security) to detect, deter, and combat immigration benefit fraud to strengthen USCIS' goals and efforts will also increase. Technology based programs such as E-verify will rule and many could become mandatory for all U.S. employers. Immigration attorneys will be well served by advising their corporate clients to put their immigration compliance (i.e. I-9, public access and audit files, etc.) houses in order."

Krome Detention Center in Miami Launches New Program To Speed Up Court Proceedings

DHS' Krome Detention Center in Miami launched a new program aimed to speed up immigration court proceedings immigrants facing deportation.

According to the South Florida Sun-Sentinel, Krome Detention Center has cut an average of 13 days off the time it takes to process deportation cases. An independent study of the center reveals that the Krome Detention Center presently processes cases in 27 days versus the 40 day processing averages of most immigrant detention centers nation wide.

This cut is significant, not only because detention time is reduced, but also because it saves millions of dollars. The cut has also an added benefit, it allows the court system to run more efficiently.

The new program includes orientation, which is intends to give detainees a better overview of their right and the legal process. Orientation includes providing information on available pro-bono lawyers and general information which will allow better pro-se representation. Orientation also provides detainees with information on whether they have legal standing to be in the US. The aim is to make it clear that it is best to have short court proceedings, which will save them legal fees.

“This program is extraordinarily important because there are people in the detained setting that are giving up their rights’ to stay in the country,” said Linda Osberg-Braun, president of the American Immigration Lawyers Association’s South Florida chapter.

Although this program is not new (it was originally launched in 2003 and currently available in 13 sites), the program now at the Krome Detention Center is considered by some, exceptionally successful.
 

Manufacturer Gets Jail Time and More Than A Million In Fines For Immigration Violations

 The president of a Massachusetts military goods manufacturing company will pay a fine and serve up to 18 months in prison to settle charges stemming from a raid by federal immigration officials in March of 2007.  The company will also have to pay a fine of $1.5 million.  Under the terms of a plea agreement entered Nov. 3. MBI and its president and principal shareholder, pleaded guilty to several charges in U.S. District Court for the District of Massachusetts alleging that they hired illegal aliens, helped to shield them from detection, failed to pay them full overtime, and fraudulently misled the government. The company specialized in the manufacture of handbags and leather goods. Between 2001 and 2006, MBI won a number of Department of Defense contracts worth approximately $230 million. As a result of these defense contracts, the federal government said, MBI increased its workforce from approximately 85 employees in 2001 to approximately 650 people in 2006.

The company president and two managers were arrested and charged with various violations of federal criminal law and the Immigration and Nationality Act in a criminal information March 6, the day officials from ICE raided the worksite and detained at least 361 alleged illegal aliens. The three were subsequently indicted in August 2007 by a grand jury on charges of conspiracy to harbor and conspiracy to hire illegal aliens. In a plea agreement entered on Nov. 3, MBI pleaded guilty to 18 counts of knowingly hiring illegal aliens, helping to harbor and shield illegal aliens from detection from authorities from 2004 to 2007; fraudulently misrepresenting Social Security numbers and committing mail fraud when it submitted Social Security numbers to the IRS and Social Security Administration knowing that many of the numbers had to be false given that many of the company's employees were illegal aliens; and failing to pay many employees overtime from 2005 to 2007. MBI's president pleaded guilty to helping harbor and conceal illegal aliens by allowing the company to submit false Social Security numbers for employees to the government as if they were real.

Federal Officials Report To Have Deported More Than 12,000 Foreign Nationals From Florida, Puerto Rico And The U.S. Virgin Islands In The 12 Months Ending In October 2008

On November 7, 2008, Associated Press reported “Federal officials say they have deported more than 12,000 illegal immigrants from Florida, Puerto Rico and the U.S. Virgin Islands in the 12 months ending in October.” The number of deported foreign nationals provided by U.S. Immigration Customs Enforcement (“ICE”) is actually 12,753. This number includes immigration violators, fugitives, and foreign nationals convicted of deportable crimes (i.e. felonies and certain misdemeanors). This number also represents, roughly, a 25% increase in the number of deportations from the prior fiscal year (9,105). DHS’ fiscal year begins every October 1st.

 

CHEP Joins IMAGE program

CHEP, a pallet and container pooling services company in Orlando, recently announced its “formal partnership” with U.S. Immigration and Customs Enforcement (I"CE") to follow hiring practices, train its staff, and use ICE’s Mutual Agreement between Government and Employers (“IMAGE”) to verify that its employees are lawfully authorized to work. The company signed for IMAGE last month at ICE's headquarters in Washington DC, committing the company to meeting the workforce compliance standards set by the program.

16 Foreign Nationals and Corporations Indicted in Miami on Charges of Illegally Exporting Potential Military and Explosives Components to Iran

AmericasNewsToday reported that 16 foreign nationals and corporations have been indicted in Miami on charges of illegally exporting potential military and explosives components to Iran. I reproduce here below the entire article: “A federal grand jury in Miami, Fla., has returned a Superseding Indictment charging eight individuals and eight corporations in connection with their participation in conspiracies to export U.S.-manufactured commodities to prohibited entities and to Iran. The defendants are named in a thirteen (13) count Indictment – returned on Sept. 11, 2008 and unsealed today -- that includes charges of conspiracy, violations of the International Emergency Economic Powers Act and the United States Iran Embargo, and making false statements to federal agencies in connection with the export of thousands of U.S. goods to Iran. The charges were announced today by R. Alexander Acosta, U.S. Attorney for the Southern District of Florida; Patrick Rowan, Acting Assistant Attorney General for National Security, U.S. Department of Justice; Mario Mancuso, Under Secretary of Commerce for Industry and Security, U.S. Department of Commerce; Adam Szubin, Director, Department of the Treasury, Office of Foreign Assets Control (OFAC); Sharon Woods, Director, Defense Criminal Investigative Service (DCIS); and Julie L. Myers, Homeland Security Assistant Secretary for U.S. Immigration and Customs Enforcement (ICE). The Superseding Indictment alleges that the defendants purchased, and then illegally exported to ultimate buyers in Iran, numerous "dual use" commodities. "Dual-use" commodities are goods and technologies that have commercial application, but could also be used to further the military or nuclear potential of other nations and could be detrimental to the foreign policy or national security of the United States. In this regard, the Superseding Indictment alleges that the defendants caused the export of 120 field-programmable gate arrays, more than 5000 integrated circuits of varying types, approximately 345 Global Positioning Systems ("GPS"), 12,000 Microchip brand micro-controllers, and a Field Communicator. All of these items have potential military applications, including as components in the construction of improvised explosive devices (IEDs). The charges announced today are the result of an extensive inter-agency investigation into the use of U.S.-made goods in the construction of IEDs and other explosive devices used against Coalition Forces in Iraq and Afghanistan. Charged in the Superseding Indictment are: Ali Akbar Yahya, an Iranian national and naturalized British citizen; F.N. Yaghmaei, a/k/a " Farrokh Nia Yaghmaei," an Iranian national; Mayrow General Trading, Atlinx Electronics, Micatic General Trading, Madjico Micro Electronics, a/k/a "MME," and Al-Faris, all Dubai-based businesses; Neda Industrial Group, an Iran-based business; Bahman Ghandi, a/k/a "Brian Ghandi," an Iranian national; Farshid Gillardian, a/k/a "Isaac Gillardian," a/k/a "Isaac Gill," an Iranian national and a naturalized British citizen; Kaam Chee Mun, a/k/a "Brian Kaam," a resident of Malaysia; Djamshid Nezhad, a/k/a "Reza," a resident of Germany; Ahmad Rahzad, a/k/a "Saeb Karim," an Iranian national; Majid Seif, a/k/a "Mark Ong,"a/k/a "Matti Chong," an Iranian national residing in Malaysia; and Eco Biochem Sdn BHD and Vast Solution Sdn BHD, Malaysian businesses. The defendants are charged with purchasing and causing the export of U.S. goods to Iran through middle countries, including the United Arab Emirates, Malaysia, England, Germany, and Singapore. More specifically, the charges in the Indictment are as follows:

• Count 1 of the Superseding Indictment charges defendants Yahya, Yaghmaei, Mayrow General Trading, Atlinx Electronics, Micatic General Trading, Majidco Micro Electronics, Al-Faris, and Neda Industrial Group with conspiracy to export goods to Iran and to defraud the United States, in violation of the International Emergency Economic Powers Act, Title 50, United States Code, Sections 1702 and 1705(a), the United States Iran Embargo, and the Export Administration Regulations, and Title 18, United States Code, Section 371.

• Counts 2 through 5 charge defendants Yahya, Yaghmaei, Micatic, and Mayrow with exporting U.S. goods from the United States to Iran, in violation of the International Emergency Economic Powers Act and the United States Iran Embargo.

• Counts 6 through 8 charge defendants Yahya, Yaghmaei, Majidco, Micatic, and Mayrow with making false statements in federally mandated shipping documents regarding the ultimate destination and use of the goods, in violation of Title 18, United States Code, Section 1001(a)(2).

• Count 9 charges defendants Yahya, Mayrow, Al-Faris, Ghandi, Gillardian, Mun, Nezhad, Rahzad, Seif, Eco Biochem, and Vast Solution with conspiracy to export goods to Iran, in violation of the International Emergency Economic Powers Act, Title 50 United States Code, Sections 1702 and 1705(a), the United States Iran Embargo, and the Export Administration Regulations, and to defraud the United States, in violation of Title 18, United States Code, Section 371.

• Counts 10 and 11 charge defendants Al-Faris, Seif, and Vast Solution with exporting U.S. goods from the United States to Iran, in violation of the International Emergency Economic Powers Act and the United States Iran Embargo.

• Counts 12 and 13 charge defendant Seif with making false statements by misrepresenting the ultimate destination and use of the goods on Federal Form BS-711 Statement By Ultimate Consignee and Purchaser, in violation of Title 18, United States Code, Section 1001(a)(2).

U.S. Attorney Alex Acosta stated, "The dual use items that the defendants illegally exported to Iran have military applications, including the making of improvised explosive devices. I urge any domestic supplier who may have unwittingly helped the defendants, or others like them, to come forth and report the matter to federal law enforcement. We cannot profit at the expense of our soldiers’ safety abroad. The United States Attorney’s Office will continue to investigate this matter as additional information is uncovered." "Today's indictment details the global reach of Iranian procurement networks and underscores, in dramatic terms, the importance of keeping sensitive U.S. technology out of their grasp," said Patrick Rowan, Acting Assistant Attorney General for National Security at the U.S. Department of Justice. "This extensive, effective government effort has broken up a lethal international ring seeking to harm American and allied forces as well as innocent civilians by acquiring sensitive U.S. technology capable of producing improvised explosive devices (IED) similar to those being used in Iraq and Afghanistan," said Mario Mancuso, Under Secretary of Commerce for Industry and Security. "The Commerce Department remains firmly committed to protect our forces by prosecuting those who try to do them harm, and today’s action illustrates the broad scope of that endeavor." Adam Szubin, Director of the Department of the Treasury’s Office of Foreign Assets Control, added, "The U.S. Government is wielding a powerful array of authorities against Iran's proliferation supply chain. In concert with today's unsealed indictment against Iran's suppliers and middlemen, Treasury is levying sanctions against Iranian military end-users that procured goods from those named in today's indictment. Together, the actions of the Justice, Commerce, and Treasury Departments will expose Iran's proxies to the world and undermine its procurement activities." Sharon Woods, Director of the Defense Criminal Investigative Service of the Department of Defense Office of Inspector General, stated, "The illegal diversion of U.S. military technologies through deception, by domestic and foreign companies, poses a significant danger to America's soldiers on the battlefield. These illegally exported goods provided our enemies with necessary components to manufacture improvised explosive devices, designed to kill and maim U.S. troops and allies. The Pentagon's Defense Criminal Investigative Service and its investigative partners will continue to pursue and expose these hidden enemies to help protect our soldiers as we fight against global terrorism." "The national security implications of this case cannot be underestimated," said Julie L. Myers, Homeland Security Assistant Secretary for ICE. "The export of dual use technology is controlled for good reason. In the wrong hands, these items could be used to harm our soldiers, our homeland, and our allies. Enforcing U.S. export laws is one of our top priorities, and we will continue to work with our law enforcement partners to ensure that those who put our country at risk are brought to justice. "If convicted on the conspiracy charges, the defendants each face a statutory maximum sentence of up to five (5) years’ imprisonment. If convicted of violating the International Emergency Economic Powers Act and the Iran Embargo, the defendants face a statutory maximum sentence of up to twenty (20) years’ imprisonment. If convicted of making false statements, the defendants face a statutory maximum sentence of up to five (5) years’ imprisonment. In addition, the defendants face possible fines of up to $1 million. Acosta commended the investigative efforts of the U.S. Department of Commerce, which led this investigation, the Office of Foreign Assets Control of Department of the Treasury, the Defense Criminal Investigative Service, and U.S. Immigration and Customs Enforcement, Office of Investigations, for their work on this case. The case is being prosecuted by Assistant U.S. Attorney Melissa Damian. Anyone with information regarding the activities of these defendants or others like them should contact the Commerce Department by calling 1-800-424-2980. On the Web: http://www.bis.doc.gov/.”


 

ICE Enlists Companies to Stem Illegal Hirings - Firms Sign On for Self-policing; Critics Wonder If It Could Be a Trap

I am reproducing in its entirety the following article, I think you should read it:

"ICE Enlists Companies to Stem Illegal Hirings - Firms Sign On for Self-policing; Critics Wonder If It Could Be a Trap By SUSAN CARROLL Copyright 2008 Houston Chronicle, Sept. 9, 2008, 10:52PM

With high-profile workplace immigration raids making news across the country, many employers might not seem eager to sit face-to-face with an Immigration and Customs Enforcement agent and open up their books for scrutiny. But Betsy Kippenhan, an executive with a Houston-based staffing firm, seemed downright excited about it, speaking fondly of the "ICE advocate" who will be helping the company, Talent Tree, verify its worker eligibility through an ICE program called "IMAGE."

"We wanted to make sure they were going to look at us and give us the stamp of approval, which is what they've done," said Kippenhan on Tuesday after formally signing up for ICE's self-policing program for employers. But some immigration attorneys and labor advocates warned that IMAGE could be a legal trap for employers who haven't been vigilant examining workers I-9 forms, which establish eligibility to work in the U.S. In exchange for free education and training, companies participating in IMAGE (Mutual Agreement between Government and Employers) agree to meet certain requirements, including using the federal government's Internet-based employment verification system and checking workers' Social Security numbers. Employers also must agree to an ICE audit of workers' employment paperwork and promise to self-report any violations of hiring law.

Membership growing
ICE spokeswoman Pat Reilly said the program started small in January 2007 with only nine members. On Tuesday it added 26 members and 11 associate members, a category created in June to give employers two years to get their paperwork in order before submitting to an ICE audit or producing an annual report. The membership rolls range from small businesses like the Bellaire-based construction company All American Brothers, to big names in government contracting, like General Dynamics. Smithfield Foods Inc., which employs more than 57,000 people worldwide, also is an associate member. Reilly said some employers expressed an interest in the program after "someone else in their industry was the subject of a worksite enforcement" raid. ICE has stepped up its worksite enforcement in recent months, reporting 3,900 arrests for immigration violations and more than 1,000 criminal arrests from worksite enforcement investigations in the past 10 months. According to ICE, 116 owners, managers, supervisors or human resources employees, were facing criminal charges in connection with on-the-job raids, including harboring or knowingly hiring undocumented workers.

'A poor image'
For some companies, Reilly said, the program is "brand protection, and an insurance against 'headline risk'. You don't want your brand bandied about as somebody who doesn't comply with the law because then you lose clients' confidence." Kathleen Walker, an El Paso attorney and executive committee member with the American Immigration Lawyers Association, said IMAGE "has a poor image" and has attracted few participants. "I think it's a mirage," Walker said. "Employers can put themselves into a trap signing up for IMAGE." Charles Foster, a Houston immigration attorney with Tindall & Foster, urged employers to use caution before signing up for the program, particularly if "their house is not in order." "On the surface, there is nothing wrong with it," he said. "But there are concerns that employers should be aware of. You're effectively inviting the government to review all of your employment verification forms. That could produce significant civil and criminal liability."

'Not a trap'
Foster and Walker pointed to a raid of the Swift & Co. meatpacking plants in December 2006 in Texas as an example of what can go wrong with private partnerships with ICE. Swift had voluntarily participated in the government's electronic employment verification system for more than a decade before the raids, which resulted in more than 1,200 arrests at six meatpacking plants. Reilly said E-Verify is a "free, easy-to-use tool," but is not a stand-alone solution to detecting undocumented workers. She said hiring practices at Swift plants showed a pattern of blatant illegal behavior. Reilly said IMAGE is "not a trap," pledging that ICE will work with businesses that participate in the program. "When we look at their records ... and patterns that might indicate an illegal workforce, we're not going to say, 'You have to come into compliance by tomorrow.' " Reilly said. "But what we are going to look for is if there is any illegal activity going on in their workplace, we're going to ask them to take care of that first, like stolen identities and flagrant fraudulent documents." Hector Diaz, the president of All American Brothers Company based in Bellaire, called the program "the wave of the future." He signed up as an associate member on Tuesday, and completed his first day of IMAGE training in Arlington, Va., saying the program has become an necessity for his roughly 20-employee construction company, which works exclusively on government contracts. "I think it's going to be a requirement for federal contract work," said Diaz, whose recent projects included work at Ellington Field and NASA. "You can't be working on a government contract and have an illegal alien."

Reassuring clients
Ruth McCurdy, vice president for corporate connections for Talent Tree, which employs 35,000 temporary associates and about 250 staff members nationwide, said one of the main goals is to reassure clients that workers placed with their companies by the staffing firm are eligible to work in the U.S. "There are companies out there that employ illegal aliens and put them in companies, and that puts a lot of people at risk," McCurdy said. "When you are working with a third party for your workforce, you need to know you have a partner that has people who have passed the eligibility requirements."

 

Des Moines Register's Critics Tie Scant New Charges to Wariness After Postville Raid

On August 28, 2008, The Des Moines Register published  a story by Tony Leys entitled "Critics tie scant new charges to wariness after Postville raid."  Florida employers would be well served if they read it.  I reproduce the story in full here below:
 

"Critics of the way suspected illegal immigrant workers were handled after last May's raid in Iowa noticed a change in government tactics after this week's raid in Mississippi. Federal officials detained 595 workers at a Mississippi electric-transformer factory Monday but filed criminal charges against just eight of them. That's in marked contrast to what happened after the raid at the Agriprocessors meatpacking plant in Postville, where prosecutors filed criminal identity-theft charges within days against 305 of the 389 workers who were arrested. Most of those people quickly pleaded guilty during mass hearings held at the National Cattle Congress grounds in Waterloo and now are serving five-month prison sentences. Most of the workers arrested in Mississippi are being held on civil immigration charges, which generally lead to deportation. A spokeswoman for the Immigration and Customs Enforcement agency would not specify why so few of the Mississippi workers had been charged with crimes. She said more charges could still be added. But one of the most prominent critics of the legal process used in Iowa said Wednesday that the government appears to be backing away from those tactics. "I think Postville was a huge embarrassment because of the criminalization of workers," said Erik Camayd-Freixas, a veteran federal courts interpreter who participated in the Cattle Congress hearings. Camayd-Freixas, who is a Spanish language professor at Florida International University, made national waves this summer by publicly complaining that the legal process used in Iowa was unfair to the defendants. He said uneducated Guatemalans and Mexicans were pressured into pleading guilty to identity-theft charges, even though they didn't realize the Social Security cards they'd bought contained someone else's numbers. The vast majority had never been charged with other crimes, he said, and they had no intent to commit identity theft. Camayd-Freixas said Wednesday that in his 20 years of working with the federal courts, he'd never seen mass, rushed hearings such as those held in Iowa. He noted that news reports from Mississippi indicated that the eight people who were charged with crimes after the raid there had been taken to a regular federal courthouse for standard hearings. ICE spokeswoman Barbara Gonzalez said more criminal charges could be filed against people seized in the Mississippi raid. She said that too often, Americans believe raids indicate the end of investigations. "They don't," Gonzalez said. "In fact, the investigation continues." Federal prosecutors did not respond to requests for comment. The Mississippi raid surpassed the size of the one in Postville, which had been described as the biggest single-site immigration raid in U.S. history. A national group calling for tougher immigration enforcement declined to speculate Wednesday on why the Mississippi raid hadn't brought more criminal charges. The facts of individual cases could be much different, said Ira Mehlman, spokesman for the Federation for American Immigration Reform. Among the Agriprocessors workers, he said, "there were a lot of things besides just working in the country illegally." Drake University law Professor Bob Rigg said the process being used in Mississippi looks familiar. "That used to be the norm until Postville," said Rigg, who has criticized the prosecution methods used in Iowa. He said it's hard to tell why the government hasn't filed mass charges in the latest case. But lawyers around the country are aware of the Iowa controversy, Rigg said. Among other things, it led to a critical New York Times editorial titled "The Shame of Postville." "It could be the U.S. attorney in Mississippi decided, 'I'm not going to go through that,' " Rigg said."

ICE Apprehends 595 Undocumented Workers At An Electrical Equipment Manufacturing Plant In Laurel, Mississippi

On Monday, August 25, 2008, U.S. Immigration and Customs Enforcement Agents (“ICE”) raided Howard Industries Inc. of Laurel, Mississippi, an electrical equipment company that produces electrical transformers, medical supplies, and others, apprehending 595 suspected undocumented workers. Howard Industries, founded in the 1960s, received in 2002 a $31.5 million, taxpayer-backed incentive plan aimed at helping to expand its operations. On Monday, Barbara Gonzalez, ICE’s spokeswoman for this raid, stated this raid was "...a targeted enforcement operation that is part of an ongoing ICE investigation that has revealed that illegal aliens are employed at Howard Industries." Barbara Gonzalez also added that ICE had acted on a tip provided by a union worker. The U.S. Department of Justice and ICE issued a joint press release annoucing that “…special agents executed a federal criminal search warrant yesterday at Howard Industries, Inc., an electric transformer manufacturing facility, for evidence relating to aggravated identity theft, fraudulent use of Social Security numbers and other crimes, as well as a civil search warrant for individuals illegally in the United States…as a result of yesterday’s enforcement action, approximately 595 illegal aliens were arrested by ICE special agents. Of those, approximately 106 were identified as being eligible for an alternative to detention based on humanitarian reasons. These individuals will still be required to appear before a federal immigration judge who will ultimately determine whether or not they will be deported. Eight criminal cases have been accepted for prosecution by the U.S. Attorney’s Office for the Southern District of Mississippi. The criminal cases are focused on charges of aggravated identity theft. The other cases are being handled via administrative law procedures at the Department of Homeland Security. “Yesterday’s enforcement action is part of ICE’s ongoing nationwide effort to shut down the employment magnet fueling illegal immigration,” said Holt. “We are committed to strengthening the integrity of our nation’s immigration system. Harris noted that the eight cases being criminally prosecuted are for separate identity theft charges. “Identity theft is a growing problem in the United States, and the Department of Justice has prioritized bringing perpetrators of these crimes to justice and protecting the interests of innocent victims. All of those arrested were interviewed, fingerprinted and photographed by ICE agents and processed for removal from the United States. Approximately 475 were transported to an ICE facility in Jena, Louisiana where they will await the outcome of their case. The eight individuals facing criminal charges are in the custody of the U.S. Marshal’s Service.” On August 27, 2008 the Hattiesburg American reported that "when federal agents raided the Howard Industries plant early Monday, they sealed off the exits and made it impossible for any of the workers to escape, some of the detainees released said Tuesday. ...when the Immigration and Customs Enforcement agents scrambled into the plant, they ordered workers to form two lines - one for Hispanics and one for non-Hispanics."According to AP this "the largest single-workplace immigration raid in U.S. history has caused panic among Hispanic families in this small southern Mississippi town, where federal agents rounded up nearly 600 plant workers suspected of being in the country illegally."
 

ICE Arrests 59 Unauthorized Foreign Nationals Employed by Asheville, North Carolina, Department of Defense Contractor

On August 12, 2008, fifty-nine (59) foreign nationals illegally working at   Mills Manufacturing Corporation (“MMC”) were arrested in North Carolina by U.S. Department of Homeland Security, Immigration and Customs Enforcement (“ICE”)'s agents. The arrests were based on a “critical infrastructure” investigation carried out by ICE which revealed that illegal aliens had used fraudulent social security numbers to obtain employment.

According to ICE, the company is cooperating fully and is not, at present, a target of its investigation. MMC is a Department of Defense contractor responsible for the manufacturing of parachutes for the U.S. military and therefore a “sensitive facility.” ICE stated that “it does not believe that arrested individuals at MMC had any ill intent against the US government or its people. However, and which appears to be a new development in ICE’s arsenal of security reasons to raid “sensitive facilities”, ICE stated that "their illegal status" could have made them "susceptible to blackmail by those with ill intent."

Delburt Richburg, assistant special agent-in-charge of the ICE Office of Investigations in Charlotte, stated that "When individuals use fraudulent social security numbers to get jobs, they hide their true identity and history. We need to know who is working on our critical infrastructure sites." All of those arrested today were transferred to the Henderson County Sheriff's Office for immigration processing. All have been placed into removal proceedings for being in violation of U.S. immigration law. At this point, no criminal charges have been presented against the arrested foreign nationals.  The investigation, however, still continues. Among the arrested, were nationals of Mexico, Guatemala, Ecuador and Honduras.

As of July 2008, ICE has made more than 3,800 administrative arrests for immigration violations during worksite enforcement operations. Interestingly enough, Orlando, Florida has a significant number of "sensitive" companies in the defense industry. I think immigration corporate compliance should be on their minds.   
 

Owner of a Florida Painting Company Pleads Guilty to Harboring Illegal Aliens

On July 29, 2008, the owner of a Florida painting company pleaded guilty to one count of harboring illegal aliens in violation of the Immigration and Nationality Act (See United States v. Tinoco-Tinoco, M.D. Fla., No. 3:08-cr-00133-HLA-MCR, plea entered 7/29/08). Ruben Tinoco-Tinoco was indicted in the U.S. District Court for the Middle District of Florida in April following the arrests of 34 illegal aliens at various residences in Jacksonville (2 WIR 268, 5/5/08 ). According to the plea agreement, 29 of those aliens said they worked for Tinoco-Tinoco at Taurus Painting Inc., in Jacksonville, Fla.
An Immigration and Customs Enforcement-led investigation revealed that from February 2007 through March 2008 numerous alleged illegal aliens were picked up at residences and driven to worksites in cars owned by Tinoco-Tinoco or his business, ICE said. Tinoco-Tinoco faces a maximum sentence of 10 years in prison and $250,000 in fines. In addition, under the terms of the plea agreement, Tinoco-Tinoco agreed to pay $50,000 and surrender two houses in forfeiture. "The recruitment, harboring and transportation of illegal aliens are very serious crimes that we will simply not tolerate," Robert Weber, special agent in charge of the ICE Office of Investigations in Tampa, said in a July 29 statement. "My office devotes significant resources to identify, prosecute and incarcerate these criminals and is determined to continue identifying and shutting down vulnerabilities to our immigration system such as harboring illegal aliens," Weber said.

U.S. District Judge States Social Security Card Might Not Be Legal ID In Pilgrims Pride Immigration Case

On July 7, 2008, the Chattanooga Times/Free, reported that “a federal judge has suggested that when two men used false Social Security cards to gain employment at the local Pilgrim's Pride plant, they might not have technically broken the law.” Further, the Chattanooga Times/Free goes on to state that “U.S. District Judge Harry S. Mattice’s revelation that Social Security cards are not necessarily valid forms of identification, however, sent the defense back to the drawing board with no complaints from the federal government. Judge Mattice recalled a 2003 case in which the government prosecuted Tyson Foods for hiring illegal immigrants. In that case, U.S. District Judge R. Allan Edgar dismissed certain charges with regard to the use of a Social Security card, ruling that a certain section of U.S. immigration law does not list the document as a valid form of I.D. ‘This is an issue that will have to be decided by a higher court,’ Judge Mattice said. ‘I'm not sure you can base this charge on a false Social Security card.’ ” Although it is too early to tell, if Federal District Judge Mattice’s conclusions were to be upheld in the end by a higher court, this could impose a significant roadblock for I-9 enforcement.

ICE Executes Search Warrant Targeting California Farm Labor Contractor

On June 5, 2008, U.S. Immigration and Customs Enforcement (“ICE”) agents executed a federal search warrant as part of an ongoing investigation targeting an Imperial Valley-area farm labor contractor, arresting two of the company’s foremen on criminal charges and another 32 employees on administrative immigration violations. The warrant was executed at the business office of the locally-owned Boss 4 Packing company, a packing business in Heber, California that provides contract workers to the farming industry in the Imperial Valley. The two arrested company foremen were charged with federal criminal charges for misusing Social Security numbers to employ illegal alien workers. The 32 illegal aliens employed by Boss 4 Packing include a group of seven women and 25 men from Mexico and Honduras. So far, 18 have been repatriated to Mexico and 12 are being held as material witnesses in the ongoing Investigation. One underage worker has been turned over to relatives. The search warrant remains under seal and the investigation is ongoing.

This could very well have happened in Florida. So far in fiscal year 2008, ICE has made more than 3,700 arrests in connection with worksite enforcement investigations, including 850 involving criminal violations. In fiscal year 2007, ICE made more than 4,900 arrests in connection with worksite enforcement investigations, including 863 involving criminal violations. That represents a 45-fold increase in criminal worksite arrests compared to fiscal year 2001. In addition, ICE obtained more than $31 million in criminal fines, restitutions and civil judgments in fiscal year 2007 as a result of worksite related enforcement actions.

Immigration Compliance for Florida Employers

Between February 21 and 22 of 2007 three executives of Rosenbaum-Cunningham International, Inc. (“RCI”), a Florida-based national cleaning contractor, were charged with conspiracy to defraud the United States and to harbor illegal aliens for profit. They were also charged with evading payment of federal employment taxes.

The 23-count indictment charged that these individuals operated a cleaning and grounds-maintenance service that contracted with theme restaurant chains and hospitality venues throughout the United States and staffed the cleaning crews with undocumented foreign nationals. According to the indictment, the federal authorities charged the three janitorial company executives of embezzling more than $18.6 million by failing to collect and pay federal income, Social Security, Medicare and federal employment taxes on the wages paid to its workforce, hundreds of illegal immigrants from Mexico, Central America, and Haiti. RCI allegedly hired illegal immigrants, paid them in cash and never required them to provide identification or fill out job applications or tax forms.

RCI’s president, vice president and controller were arrested along with more than 200 of the Florida-based company’s employees at 64 locations in 18 states and the District of Columbia, in a sweep by Immigration and Customs Enforcement (“ICE”). The employees were arrested as they were starting or leaving their shifts. According to ICE leadership, the sweep resulted from a 20-month investigation conducted by ICE agents sparked by the arrest of an illegal alien in Grand Rapids, Michigan.

One of the most interesting aspects of this case is that RCI clients (2001-2005) included House of Blues, Planet Hollywood, Hard Rock Café, Dave and Busters, Yardhouse, ESPN Zone and China Grill. It appears there is no evidence that any of the companies were complicit. In the mean time, RCI has ceased operations as of February 22, 2007.

Until recently, employers who were targeted for a raid usually faced only civil fines and deportation of their illegal workers. However, since 2006, ICE has focused more and more on enforcing criminal penalties including felony charges that have lead to huge fines and asset seizures. Additionally, employers have been charged with criminal violations such as money laundering, alien harboring, illegal alien employment and wire fraud. The DHS has also stated that it hopes increasing the harshness of the penalties encourages employers to comply with laws against hiring illegal workers.

The years 2006 and 2007 have not only seen an increase in the scope of employer liability, but also an effort by the government to clarify employers’ duties when it comes to resolving discrepancies in an employee’s eligibility to work in the United States. Specifically, ICE proposed a rule in June 2006 that expanded the notion of constructive knowledge as it relates to an employer’s liability that is found to have hired illegal workers. It also described “safe-harbor” procedures for employers who receive a “no-match letter” from the SSA or DHS.

Related to the notion of constructive knowledge, there appears to be a trend towards seeking employer liability even where its contractors or sub-contractors hire illegal workers. Current regulations state that an employer who knowingly or with reckless disregard contracts to obtain the labor of an unauthorized alien will be considered to have hired the employee. Incredibly, in terms of raids already conducted by ICE, in spite of the many industries targeted by ICE existing in our state (i.e. construction, agriculture, hospitality, retail, etc.) Florida has not been an “active” place. We do not hear much about ICE in Florida. But, just as RCI, simply put, employers should not make the mistake of assuming that ICE will not come and raid them.  Employers should be prepared for when it comes. Our state has too many industries which are the focus of ICE’s interest. Given the focus on employer liability for hiring illegal workers, there are various ways employers can proactively protect themselves against not only government investigations and ensure compliance with potential new laws and regulations, but also from service providers who may be hiring undocumented workers. Employers cannot afford neglecting these important tasks.