Recent high-profile raids on worksites by the U.S. Immigration and Customs Enforcement (ICE) may have shocked the general public but should come as no surprise to employers who have been in the agency’s cross hairs in recent years
On Aug. 7, ICE made headlines when it swept up 680 workers from seven poultry processing plants across Mississippi. The logistics of this sweep required at least a year to plan what turned out to be the largest workplace raid in a decade. Within days of the raids taking place, nearly 300 of the detainees had been released from custody after they were processed and given dates to appear later in federal immigration court.
In the aftermath, several television news interviewers grilled ICE officials about why they weren’t going after employers, apparently unaware or unwilling to acknowledge that this is exactly what the agency has been doing over the last several years. In fact, the interviewers could have easily discovered the extent of the government’s nationwide crackdown on employers in a matter of seconds with a simple Internet search.
(Critics of President Trump’s immigration policies also predicted that the poultry processing plant jobs would go unfilled following the raids, in accordance with the widespread belief among open borders supporters that illegal immigrants are “doing jobs Americans won’t do.” Not long after the raids took place, however, news reports showed citizens lining up for these jobs, evenly divided among whites, blacks and Hispanic Americans.)
What the popular press largely ignored was the fact that the Mississippi raids are simply the latest manifestations of a series of efforts aimed at employers as well as individual illegal immigrants over the last few years. Even before the Mississippi raids it was reported that between mid-May to mid-July ICE agents apprehended an additional 900 people.
According to ICE, the individuals targeted were among the immigrants who had received final deportation orders handed down by courts within the last five years. Among them were 605 convicted criminals and 93 had criminal charges pending against them, the agency said.
Employers have been anything but ignored. Remarking on the raids that took place in July, ICE acting director Matt Albence said at the time, “When we perform these worksite surges and all of our worksite investigations, our primary goal is to pursue criminal prosecution against those businesses who, frankly, their business model is based upon illegal employment.”
He also observed that among the additional federal criminal charges employers can face are tax fraud, money laundering and tax evasion.
ICE Is Serious
In July alone, 3,000 Form I-9 notices of investigation (NOI) were sent to employers by ICE. Before that, there also was a surge in No Match Letters sent to employers during the spring, along with other large-scale raids that took place in other parts of the United States earlier this year.
At least another 3,000 NOI are expected to be on the way because ICE had requested and received an additional $6.5 million to hire new 27 Junior Compliance Officers (JCOs). At the time the hiring surge plan was announced, ICE assured that a major part of its mission is to “remove the magnet of illegal employment by targeting egregious employer violations and abuses in both critical infrastructure protection (CIP) business sectors and non-CIP business sectors.”
The agency reported that some of the new JCOs will be staffing four new Department of Homeland Security Investigation offices in Charlotte/Charleston, Kansas City, Las Vegas and the Nashville/Louisville areas.
“In reality, I-9 audits are an inexpensive way for the government to shift the burden of interior enforcement onto businesses, who bear the cost of replacing valuable workers and, sometimes, paying large fines for mistakes on the Forms I-9,” explains Amy L. Peck, an attorney with the law firm of Jackson Lewis.
A company receiving an NOI has three days to produce the I-9s for active and terminated employees within the retention time frame specified. Although extensions of three days are allowed under the regulations, they are rarely granted, she points out.
Large civil penalties also can be assessed against employers for mistakes occurring on the I-9s, ranging from $220 to $2,292 per violation. Employers with unauthorized employees who are discovered during the course of these investigations will be given 10 days to terminate the workers’ employment.
In 2018, there were 5,981 audits—a major increase from the 1,360 that were conducted in 2017. This year, 3,282 audits were noticed in just three weeks. Several of the targeted industries include hospitality, agriculture, food processing, landscaping and construction, according to Peck. But don’t forget that these are not the only industry sectors targeted for enforcement. ICE recently arrested more than 200 workers in a raid at a technology company in Texas.
In addition, employers need to be aware that since 2017 ICE has been imposing some of the largest employer penalties in its history. One company was hit with a $95 million penalty in 2017.
Employers face other costs as well. When audits occur, companies can lose employees overnight—and not necessarily to ICE. When they hear that an ICE audit is coming, employees concerned about their documentation may simply no longer show up for work, Peck notes.
A spokesman for one of the Mississippi poultry employers stressed that the poultry processing industry does everything it can to ensure its workforce is legal, including using E-Verify. “Of course, E-Verify is not perfect,” Peck observes. “Employees can be using others’ identities, including those of dead citizens and even of their own U.S. citizen children. The government does not expect employers to be forensic experts on document fraud.”
Protect Your Business
In the wake of the Mississippi raids, employers should expect that ICE will continue to increase its worksite enforcement efforts and if you haven’t taken adequate measures before, start doing so immediately, warns attorney Todd P. Photopulos of the law firm of Butler Snow.
“This is a call to action for employers to make a risk assessment of their exposure to both civil fines and potential criminal liability for immigration compliance violations,” he says. “Now is the time for employers to establish a well-thought-out compliance program that shows they take their compliance obligations seriously.”
Photopulos explains that a robust compliance program should include external I-9 audits by an independent party, annual training for employees and management, and regular re-verification of employees’ status to make sure their authorization has not expired.
Even with all of the E-Verify system’s flaws, it also is important to enroll in it and use it in conjunction with this compliance program, he says, particularly if you are operating in states where E-Verify has become mandatory for many employers.
“Cutting corners on immigration compliance can threaten a company’s existence and can put managers and executives responsible for hiring undocumented workers in personal, legal jeopardy,” Photopulos emphasizes.
He recommends that employers also make sure that their formal, written compliance program contains:
● Clearly defined hierarchy of supervision, responsibility and accountability for making compliance-related decisions.
● Detailed descriptions of the roles of the various individuals involved in compliance decisions.
● Procedures to verify employees’ documentation.
● Established time frames for completion of specific actions, such as when the Form I-9 must be completed and by whom.
● Direction as to when managerial involvement is required and when inside/outside counsel is appropriate.
● Summary of state and federal immigration laws, including document retention requirements, maintenance of lawful immigration status provisions, and summary of penalties.
● Clear hiring and firing policies and procedures, and compliance with citizenship/national origin anti-discrimination statutes.
● Plan of action for handling and responding to government activity such as ICE audits and raids.
“Turning a blind eye in the current climate to immigration compliance requirements creates a significant, yet unnecessary risk,” Photopulos points out. “Through proper planning employers can eliminate the worry about the consequences of a government audit.”