On Oct 21 2009

Employers Prepare for Investigations After Internal ICE Memo Became Public

Upon taking office, the Obama administration pledged to continue to increase resources in order to "remove incentives to enter the country illegally by cracking down on employers who hire undocumented immigrants."

In response to this directive, Immigration and Customs Enforcement issued a press release reiterating its continued commitment to enforcement, and stating that ICE would use new investigatory tactics to target employers of unauthorized workers.  Since the April 30 press release, ICE has launched hundreds of employer investigations nationwide.

In the first week of October, an internal ICE memorandum that details ICE’s enforcement strategy was made public.  This strategy emphasizes not only the importance of continuing worksite enforcement investigations, but also the development of “criminal cases against employers who hire and use illegal workers.”  In fact, ICE agents are encouraged to prosecute employers after finding evidence of the mistreatment of workers, trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering and other violations.  Those at risk of prosecution include the full panoply of management, ranging from business owners to corporate managers to supervisors — basically anyone involved in the management structure of a company that employs unauthorized workers.

The memo outlines the mission of the enforcement strategy to include penalizing employers who knowingly hire unauthorized workers; deterring employers who are inclined to hire unauthorized workers; and encouraging employers to make sure that they are in compliance with immigration regulations.  Employers involved in critical infrastructure and national security, such as airports, nuclear power plants, chemical plants, military bases, defense facilities and seaports, can expect to continue to be favorite targets of ICE scrutiny and enforcement actions.  Additionally, ICE guidance encourages the initiation of debarment proceedings against federal contractors that have knowingly hired unauthorized workers.

ICE headquarters also announced its intention to exercise much more control over worksite enforcement actions.  ICE agents are instructed to adhere to pre-existing reporting requirements mandating that they provide ICE headquarters with 14 days’ notice prior to developing or executing enforcement activity.  This is part of an overall effort to ensure that action is taken only when there is a comprehensive and successful plan in place for the prosecution of employers.

The memo encourages ICE agents to use informants, cooperating witnesses, undercover agents, consensual searches and Form I-9 audits as their primary investigative tools.  It reminds ICE agents to obtain a warrant, indictment or a commitment from a U.S. attorney to prosecute the targeted employer before arresting any unauthorized employees at a worksite.  Absent specific guidance in the memo, it will be interesting to see if in place of criminal warrants, which require a showing of probable cause, there will be more reliance on administrative warrants or federal civil search warrants.  These are known as Blackie’s warrants and have a far lower standard.  It is important to note that in enforcement actions ICE has two bites at the apple — they can pursue both criminal sanctions and administrative fines against employers found to have employed unauthorized aliens.

According to the memo, ICE’s “most important administrative tool” in conducting investigations is the notice of inspection, or NOI.  These inspections include a detailed review of an employer’s entire employment eligibility verification process, including its I-9 forms and training and record-keeping procedures to ensure full compliance with IRCA requirements.  The memo notes that ICE will use NOIs in both criminal and administrative investigations.  Following the issuance of the internal worksite enforcement memo, ICE announced a nationwide initiative to audit employers’ I-9 forms.  To kick off this new initiative, ICE issued NOIs to 652 employers across the country.  Compare this to Fiscal Year 2008, when ICE issued only 503 similar notices to employers for the entire year.

The current focus is a significant departure from the days of legacy INS when employers could expect a slap on the wrist in the form of minimal fines as just another cost of doing business.  In this era of increased I-9 enforcement actions, employers must proactively pre-empt immigration-related liabilities.  For example, employers should conduct internal I-9 audits to identify issues and correct violations.  Part and parcel of these internal audits should be an evaluation of the employers’ current record keeping practices, to determine if new training programs are needed for human resources personnel.  Immigration counsel can be invaluable during these times in developing best practices, which include establishing protocols for the verification of the identity and work eligibility of new hires, advising employers on safeguards against discrimination in the I-9 process and advising on the use of E-Verify.

Employers who receive a NOI are advised to contact counsel as quickly as possible.  Generally, these notices only provide the employer three days with which to package and submit their I-9s to ICE for review.  It is advisable to have counsel review the company’s payroll to identify any discrepancies between the number of employees and the company’s I-9s.  During these three days, employers will want to double-check their I-9s, correcting those with obvious errors.  It is highly recommended that company representatives retain copies of all documentation submitted to ICE.  Employers who can demonstrate good-faith efforts to comply with immigration laws are more likely to avoid criminal penalties and be assessed lower-level civil fines if violations are uncovered.

Given the government’s ongoing focus on worksite enforcement, it is critical that employers recognize that the time for immigration compliance has come.  Not only should employers make certain that they do not hire or continue to employ workers they know to be ineligible for employment, but they must ensure that they are in full compliance with all regulatory requirements.  Establishing internal “best practices” to avoid liability is critical.  Bringing in experienced counsel to train human resources personnel on all aspects of immigration compliance and establishing proper record-keeping procedures can significantly mitigate damages, reduce exposure and minimize costs for the employer in the long term.

Published in The Legal Intelligencer, October 21, 2009