[Blogger’s Note: Today’s post is by my colleague, Mahsa Aliaskari, Seyfarth Shaw LLP’s Senior Counsel. Mahsa has advised and defended businesses with up to 100,000+ nationwide employees on U.S. immigration compliance programs and practices. She and yours truly — along with former USCIS Director, Leon Rodriguez, noted worksite enforcement lawyer, Dawn Lurie, and Alexander Madrak, who recently joined Seyfarth from the Immigrant and Employee Rights Section in the Civil Rights Division of the U.S. Department of Justice — are part of Seyfarth’s Immigration Compliance Specialty Team, within the firm’s Immigration Group. Mahsa’s basic message is that, given the Administration’s focus on immigration worksite-enforcement, employers — no matter how vigilant corporate leaders perceive their immigration compliance measures to be — must take nothing for granted. Stop assuming and check things out.]
Targeted ICE Investigations ~ in it for the Long Haul with Record $95 Million Plea Deal for I-9 Violations
Following a six year investigation, the U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) unit issued a statement confirming a guilty plea on September 28, 2017 by Asplundh Tree Experts, Co. (Asplundh) for unlawfully employing undocumented workers. As part of the plea agreement, Asplundh received a sentence to pay a forfeiture money judgment in the amount of $80 million dollars, abide by an ICE HSI Administrative Compliance Agreement, and pay an additional $15 million dollars to satisfy civil claims arising out of their failure to comply with immigration law. Prior to this, the often touted “record settlement” included IFCO Systems North America Inc.’s (IFCO) $20.7 million dollars from 2006.
- Appointing a Compliance Specialist trained in fraudulent document identification in each Asplundh region nation-wide.
- Revising hiring procedures to verify each identification examination for every new hire.
- Investigating every complaint of potentially undocumented workers.
- Retaining a third party consultant to review actions and procedures.
- Presenting the company compliance program to ICE for review.
- Preventative Audits – Guided internal audits of I-9 documents, processes and procedures. Do this sooner rather than later and with guidance from experienced immigration compliance counsel. Whether you choose to conduct the audit yourself or retain counsel, the results of the audit will go a long way toward assessing exposure and limiting liability either in a “desk audit” or a full on investigation. Remember, if the company has been audited once, you are on the government’s radar with secondary inspections and active investigations a possibility.
- Train, Train, Train – Human Resource teams and their delegates need to consistently and accurately complete Form I-9s. Provide them with basic knowledge of the process and the tools to recognize fraudulent identity and work eligibility documents. To become and remain compliant with IRCA and other state and federal immigration regulations training and investment in the people responsible for this function is critical.
- Improve or develop policies and procedures – Often we see issues relating to immigration compliance handled ad hoc, with larger entities taking a more “decentralized” approach. Time and again we see that leaving immigration compliance at the lowest rung of priorities increases risks and liabilities. When the process is identifiable, then accountability can be, too.
- Manage compliance – Policies and procedures do not mean anything without proper implementation and monitoring. Lack of compliance where immigration and IRCA mandates are concerned carries fines and penalties that includes prison terms for individuals. For the company it can also mean a PR nightmare. Dedicating top management level resources to oversee a company’s immigration compliance program should be a top consideration.
- Prepare for possible workplace disruptions – Whether the current Administration steps up enforcement actions is not really the motivating factor. As depicted in the excerpt below from the Department of Homeland Security – U.S. ICE Worksite Enforcement FY 2014 annual report, we have continually seen ICE conduct long, exhaustive investigations, with an increase in audits and related fines and penalties. The following table reflects the number of opened and closed worksite enforcement investigations, criminal and administrative employee and employer arrests and the assessed fines and collections for each fiscal year from the annual report.