Immigration Enforcement Affecting Small Businesses

Here is a reprint of an article recently forwarded to me and is used with the permission of Clark & Trevithick.

What do temporary employment and contract employment agencies in Oregon, Illinois, and Ohio; meat packers in Arkansas, Iowa and Colorado; construction companies in Mississippi, Missouri and Kentucky; a landscaping company in Florida; a textile company in Boston; and a chain of Japanese restaurants in Baltimore all have in common with the former owner of ten Dunkin’ Donut shops in Connecticut?

They’re all facing investigation and/or criminal prosecution in federal court by the newly invigorated and very aggressive United States Immigration and Customs Enforcement Agency, or “ICE”, for short¹. As the result of what in many cases started as a so-called administrative “Worksite Enforcement” investigation, the companies listed above, including individual owners, officers and managers, are facing criminal charges including hiring illegal aliens, harboring illegal aliens, money laundering, identity or document fraud and Social Security fraud, to name just a few. The consequences of conviction of many of these crimes includes jail time (harboring illegal aliens provides for a 10 year prison sentence and money laundering is a 20 year felony). In addition to prison time, ICE also has forfeiture authority to go after a company’s or individual’s assets. In FY2006 alone, ICE seized $29 million dollars through forfeiture from various employers around the country.²

Worksite Enforcement
Among its many tasks, ICE has recently focused its Worksite Enforcement teams on identifying and prosecuting companies in industries that employ unskilled or lower skilled workers that historically include undocumented aliens. The examples cited above certainly fall into this target group. While this kind of investigative activity was part of the now assimilated Immigration and Naturalization Service’s charter, the approach by ICE since 2003 is dramatically more aggressive and noteworthy.

By way of example, ICE agents recently investigated a small chain of Japanese restaurants in the Baltimore area. In March 2006, ICE agents executed search, arrest and seizure warrants at three of these restaurants and four related houses where they found 15 undocumented workers living in “deplorable conditions”.

Under the old INS approach to such a case the investigative agents would have proceeded administratively, conducting an investigation of the restaurants to determine whether necessary paperwork and forms were up-to-date and in compliance with immigration laws and regulations. Finding the undocumented workers would have generated an administrative fine in the neighborhood of $20,000, or less and probably no criminal charges.
Under the new regime instituted by ICE, the following actions were taken against the restaurant owners:

The owners were arrested and charged with money laundering (possible 20 year sentence) and harboring illegal aliens (possible 10 year sentence);

ICE agents seized 8 luxury vehicles, 10 bank accounts, 3 safety deposit boxes and cash found during the searches of the homes and restaurants;

Ultimately, the owners pleaded guilty to several felony charges and agreed to forfeit approximately $1.1 million in assets.³

Compliance Requirements
Current laws and regulations require that all employers in this country employ only individuals who are authorized to work in the United States. In order to comply, employers must verify on a Form I-9 the identity and employment eligibility of all employees, including U.S. citizens. These I-9 Forms are retained (including electronically) by the employer and must be made available for inspection by ICE, the Special Counsel for Immigration-Related Unfair Employment Practices or the Department of Labor. Failure to properly complete and retain the Form I-9 can subject an employer to civil penalties ranging from $110 to $1,100. Perhaps more significantly, ICE agents frequently use the agency’s Forensic Documents Laboratory to determine the authenticity of the various documents (including I-9’s) used to establish employment eligibility.⁴ Maintaining fraudulent documents can lead to the kinds of investigations and prosecutions noted earlier in this article.

Conclusion
Any employer, but especially one who employs lower-skilled alien workers, needs to pay particular attention to the laws and regulations that dictate the verification of employment eligibility of its workers. A new day has dawned in the form of new Worksite Enforcement investigations conducted by an aggressive and well-funded agency with a clear mandate to arrest and prosecute not just undocumented workers, but their employers and managers as well. The consequences of failure to comply with the laws in this area can include large fines, asset forfeiture and even prison.

1 ICE was created on March 1, 2003, combining the investigative and intelligence arms of the former Immigration and Naturalization Service (INS) and the U.S. Customs Service, and is part of the Department of Homeland Security. (ICE Fiscal Year 2006 Annual Report.)

2 “No More Slaps on Wrist for Work-Site Violations”, Julie L. Myers, Department of Homeland Security Assistant Secretary for Immigration and Customs Enforcement, as appeared in the Kansas City Star, June 26, 2007, ed.

3 ICE Fact Sheet, dated June 16, 2006, “Case Example—Worksite Enforcement”.

4 ICE Fact Sheet, dated April 26, 2005, “Electronic Signature and Storage of the I-9 Employment Eligibility Verification Form”.

Eric Dobberteen focuses his practice in the areas of commercial litigation and trial work, white collar criminal defense and local, state and federal regulatory enforcement proceedings. For more information regarding the Firm’s litigation practice, go to www.clarktrev.com.