Recent ICE Enforcement Actions and Arrests for Employer Form I-9 Employment Eligibility Verification Violations

ICE Worksite Enforcement Strategy
Worksite Enforcement Historical Transition
U.S. Immigration and Customs Enforcement (ICE) was established in 2003 as a sub-agency of the newly formed U.S. Department of Homeland Security (DHS). ICE took over responsibility for enforcing immigration law from the disbanded Immigration and Naturalization Service (INS), while U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS) assumed responsibility for other INS functions.

For the first two years of its existence, ICE confined its worksite enforcement efforts mostly to work locations that involved national security or critical infrastructure. By 2006, the agency dramatically shifted those efforts to workplaces where raids drew ICE’s desired national attention.

In 2007 ICE steered away from high-profile, multi-site raids, targeting a substantial number of small and medium-sized employers, such as restaurants, construction companies and manufacturing plants. Yet, ICE prosecutions often failed to resonate in the business community, lost in other headlines.

ICE again increased its worksite enforcement activities in 2007 based on lengthy investigations and substantial collaboration with U.S. attorneys' offices across the country, and with a variety of other federal and state law enforcement agencies.

ICE's tactics reflect an extraordinary shift in strategy. No longer are those who enforce U.S. immigration laws content, as the INS was, to have administrative judges impose slap-on-the-wrist fines and send illegal immigrants home. Instead, they have prosecuted a surprisingly high number of company owners, managers, human resources personnel and others in federal court, imposed heavy fines, seized property and bank accounts, and even sent people to prison for immigration-related charges.
For employers, it is important to realize, among other things, how 2007 was different from 2006, as ICE has shown an ability to adapt and change in its efforts to aggressively curtail illegal employment.

ICE I-9 and employment eligibility verification (EEV) investigation and prosecutions routinely bring together a half dozen or more local, state and federal agencies, working together—the FBI, the Drug Enforcement Administration (FDA), the Social Security Administration, state wage and labor investigators, postal service investigators, the U.S. Department of Labor and others. The use of undercover informants and agents is the norm. State and local law enforcement agencies, sometimes— but not always— trained by ICE, have taken the lead in investigating alleged violations. This trend is almost certain to grow in the next few years, as many states adopt their own employment eligibility verification (EEV) laws.

ICE has expanded its geographic reach targeting businesses in parts of the country that had seen little worksite enforcement activity in the past 20 years. The agency has similarly reached deeper into businesses that hire illegal aliens, prosecuting owners, managers, human resources personnel, a union steward and others who help illegal aliens get work.

Much as prosecutors routinely seize the assets and profits from drug dealing, they have begun targeting assets and cash profits tied to the employment of illegal workers. Severe penalties have been imposed for employing a small number of people. Even individual workers are sometimes going to prison, in part because of ICE’s realization that even the simplest type of identity theft— using someone else's Social Security number to get a job— is not a victimless crime.

ICE and prosecutors are dusting off long-unused laws to charge individuals with crimes associated with illegal employment. This shift in policy, with no change in the underlying laws, has been the most significant development in immigration enforcement since the passage of the Immigration Reform and Control Act of 1986 (IRCA), when employer sanctions and the I-9 form first came into effect.

ICE Dramatically Expands I-9 Audits in 2009
April 30, 2009, DHS Secretary Napolitano issued guidance outlining that ICE will 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. {“Knowingly” includes “constructive knowledge”. DHS emphasized ICE will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.

Clearly employment eligibility verification (EEV) is no longer limited to large employers and worksite raids.

July 1, 2009 ICE and DHS announced a nationwide initiative to audit employers’ Form I-9 employment eligibility verification records. The announcement was followed by the issuance of Notices of Inspection (NOIs) to 652 employers across the country. This was a strong statement by ICE of their intentions to pursue worksite enforcement actions. In comparison, only 503 Notices of Inspection were issued in all of fiscal year 2008.

ICE clearly indicated that targeting certain employers for their I-9 practices is part of a comprehensive strategy. This new worksite enforcement strategy reflects a push by the Obama administration to hold employers accountable for their hiring practices and to ensure a legal workforce using the government's investigative authority under the I-9 rules.

Department of Homeland Security Assistant Secretary for ICE (Immigration and Customs Enforcement, and agency of the Department of Homeland Security DHS), John Morton said of these I-9 audits:

	"ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law.”
	“(ICE is not just targeting the workers, but also the people who employ them, in the first place”…."That's a challenge. There are millions of employers in the United States.”
	"We're very cognizant that we just can't focus on the very top, on the biggest employers – that we have to do this at all levels." The previous Department of Homeland Security Assistant Secretary for ICE, Julie Myers actually innovated the new aggressive ICE enforcement programs and clearly these polices have become more extensive.
	“No employer, regardless of industry or location, is immune from complying with the nation’s laws. ICE and our law enforcement partners will continue to bring all our authorities to bear in their fight using criminal charges, asset seizures, administrative arrests and deportations.”

These warnings and the recent slew of raids, arrests, and criminal indictments against employers for worksite violations across the U.S. by ICE are clear indications that employers are on the frontline of the government’s efforts to stop illegal immigration.

Employers now find themselves facing criminal racketeering charges under RICO, potential jail time for harboring or smuggling illegal aliens, employee lawsuits for back pay, and personal fines and criminal charges against key personnel.

ICE has guaranteed that this trend will continue, as worksite enforcement and DHS/ICE are now its top priorities. It is essential that employers take immediate precautionary steps to protect themselves from potential civil and criminal liability.

Every company should consult with an immigration lawyer familiar with I-9 and Employment Eligibility Verification (EEV) to develop a written policies handbook and to train of key company executives, supervisors and plant managers, including a communication plan for what to do when ICE arrives. Employers should not wait for a phone call, letter, or knock on the door. The first step should be taken well before ICE arrives.

Recent ICE Investigations Lead to Business Owners, Managers, or Supervisors Being Arrested or Convicted for Engaging in Illegal Employment Practices or Other Crimes

	In July 2008 the owner of a restaurant in Wheaton Illinois pleaded guilty to conspiracy to harbor aliens, conspiracy to commit money laundering, and structuring bank transactions to evade reporting requirements in connection with the operation of the restaurant. The owner’s wife also pleaded guilty to conspiracy to commit money laundering. The owner agreed to forfeit $7.2 million derived from the illegal activities. The owner and his wife face a maximum of 20 years in prison for the money laundering conspiracy. In addition the owner faces a maximum of 20 years for the harboring conspiracy and 5 years for structuring transactions to avoid reporting.
	In July 2008 two managers of a n exporter and grader of used clothing were indicted July 31, 2008, on various charges of violating federal immigration laws. They were charged with conspiracy to harbor illegal aliens and to induce illegal aliens to come to the United States and inducing aliens to enter the United States for commercial advantage. Both counts carry a maximum term of 10 years imprisonment, a $250,000 fine or both. The company did not properly complete the required I-9 forms to verify eligibility for employment.
	In May 2008 an ICE worksite raid resulted m the arrests of 389 illegal aliens. It was the most ever arrested in a single-site worksite enforcement operation.  Ultimately, 305 of those arrested were also convicted of criminal offenses including: identity theft, false use of a Social Security number, illegal re-entry into the United States and other crimes. Two supervisors were arrested and charged with crimes that include aiding and abetting aggravated identity theft and encouraging aliens to reside illegally in the United States. One of those supervisors pleaded guilty to charges of conspiracy to hire illegal aliens and one count of aiding and abetting the hiring of illegal aliens.
	In March 2008 three former top executives of a Florida-based janitorial services contractor, were given prison sentences ranging from 30 to 120 months for their roles in defrauding the United States and harboring illegal aliens. Each was also required to pay more than $15 million in restitution to the U.S. Treasury. The three operated a cleaning and grounds-maintenance service — staffed predominantly with illegal aliens — that contracted with theme restaurant chains and hospitality venues throughout the United States. By failing to collect and pay federal income, Social Security, Medicare and federal employment taxes on wages it paid, the company was able to evade paying millions in employment taxes. The company’s clients included House of Blues, Planet Hollywood, Hard Rock Cafe, Dave and Busters, Yardhouse, ESPN Zone and China Grill. As part of the investigation, ICE agents also arrested 196 illegal aliens at more than 64 locations in 18 states and the District of Columbia.
	In February 2008 the married owners a Comfort Inn & Suites hotel in Oacoma, S.D., were sentenced several years in prison each after a federal jury found them guilty of peonage (involuntary servitude), visa fraud, making false statements and conspiracy.
	In February 2008, a metal fabrication business in Utah was criminally indicted on 10 counts of harboring illegal aliens. The company’s human resources director was indicted for encouraging or inducing illegal aliens to remain in the United States, and subsequently pled guilty.
	In another recent ICE actions a plant manager was convicted of harboring illegal aliens and aggravated identity theft and was sentenced to 38 months in federal prison. In that same case a human resources manager was also convicted of illegal alien harboring and sentenced to 10 months in prison.
	Another recent ICE action resulted a textile product company owner and three other managers were arrested and charged with conspiring to encourage or induce illegal aliens to reside in the United States and conspiring to hire illegal aliens.
	In another 2007 case seven managers were criminally charged with crimes including: knowingly hiring illegal aliens, transporting and harboring illegal aliens, and conspiring to transport illegal aliens. All seven have pleaded guilty and are awaiting sentencing. Five additional managers were indicted in February of 2008 for similar crimes and are awaiting trial.

Department of Labor (DOL) Payroll Inspections Can Involve Form I-9 Review
I-9 audits do not just come from ICE. Directed and random audits arise from the DOL. Two offices within the Department of Labor (DOL) have the authority to conduct regular audits of an employer’s Form I-9s without probable cause to believe that any violations have taken place.

The Department of Labor investigates employment compliance through the Wage and Hour Division and the Office of Federal Contract Compliance Program. DOL is authorized to audit employers for wage and hour matters and for H-1B and PERM public inspection files. They also inspect I-9 verification files. The Department of Labor does not have authority to issue a Notice of Intent to Fine (NIF), but it reports to DHS/USCIS.

A DOL or State Wage and Hour Division audit clearly can lead to I-9 audits and inspections.
Department of Labor has more than 1,500 inspectors and recently announced it will spend $30 million to hire 288 additional frontline inspectors to step up enforcement against employers for wage and hour violations.