Articles Posted in US Immigration and Customs Enforcement (ICE)

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USCIS has released some new instructional videos to help employers and their employees properly complete Form I-9s at time of hire. Since the passage of the Immigration Reform and Control Act of 1986 (IRCA), it has been the law every employer must document on Form I-9 the work permission status of employees hired since November 6, 1986. The law applies to the hiring of US citizens as well. Employers are subject to audit (Notices of Intent to Inspect) that can result in fines for failure to complete I-9s, failure to properly complete I-9s and for “knowingly hiring unauthorized workers.” In egregious cases, employers can be prosecuted for “patterns or practices of knowingly hiring unauthorized workers.” In addition, employers are prevented from discriminating against employees on the basis of national origin or citizenship status except in limited circumstances.

A few good resources for employers include:

1) Form I-9 and instructions. For more comprehensive information, see I-9 Central 2) M274 Handbook for Employers

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In the world of immigration and citizenship law, our clients deal with many government agencies. My readers know that I like to cite directly to government sources; so, let’s take a look at the contingency plans of various federal agencies in case Congress puts us all over the fiscal cliff into a government shutdown next week. Keep in mind that things are changing by the hour. If ever there is a time for it, should there be a shutdown, patience will certainly be a virtue while our crazy Congress gets its act together. As of this writing today, none of the agencies have posted plain language-speak on their home pages to let the public know what they plan to do. The agency documents cited below have a lot of budget management-speak, and have been sent to the White House. This is my attempt to decipher and summarize them as they could affect our clients. Stay tuned to the news.

US Department of Homeland Security

Based on a September 27, 2013 US Department of Homeland Security contingency plan, here are some ways your immigration or citizenship case may be impacted:

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Below are highlights from today’s opening Senate Judiciary Committee hearing on S. 744, the “Border Security, Economic Opportunity, and Immigration Modernization Act.” Overall, the Committee considered 32 amendments to Title I concerning border security. The Committee adopted 21 amendments, of which 20 were adopted by a bipartisan vote. The debate and voting can be viewed on C-Span. The Committee will meet again at 10 o’clock next Tuesday.

After first approving by 14-4 the Sponsors’ amended version of the entire bill, the Committee voted on a package of amendments:

Leahy 1 (prohibits border crossing fees at land ports of entry)

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It’s been 27 years since Congress passed the 1986 Immigration Reform and Control Act (IRCA) requiring employers to document the work permission status of ALL new hires, including US citizens, on Form I-9. After all those years, employers still contact our office wanting to hire, or continue employing undocumented workers, or they simply want to “help” an employee who they don’t realize lacks permission to work. Many employers sound clueless about IRCA requirements, even when there is so much information out there. In addition, mergers and acquisitions are picking up again in a number of industries. Determining actual or potential I-9 liability and other immigration related workplace compliance problems should be part of every due diligence effort.

Of course, there are many employers who know about their IRCA obligations but ignore them, betting they will not be the subject of enforcement action and penalties, and contributing to employment as the magnet for illegal immigration. By contrast, many employers don’t know if their employees are work authorized or not if they are using fraudulent documents or signing I-9 forms falsely. It’s not just those who entered the country illegally without inspection that employers want to hire or sponsor for visas and green cards. A substantial portion of the undocumented population are those immigrants who came to the US lawfully and overstayed visas, committed misrepresentation in getting their visas, or violated status by working without authorization when the terms and conditions of those visas prohibit employment (such as tourists, foreign students without authorized practical training, and H-4 spouses, to name a few examples). Hiring workers without authorization puts employers at risk as well as the unauthorized workers. Employers can be audited and fined at any time; the worker can be deported or at the least make the ability to get legal documents more complicated. Nonetheless, the fact that a worker does not presently have work authorization, doesn’t mean that they are ineligible to become work authorized later. Separate legal advice is recommended to determine a prospective employee’s status and strategy. Because of potential conflicts of interest between the employer’s liability and the employee’s right to work (or not), each may need separate legal advice depending upon state bar rules.

Without doubt, the direction of Congress has been and will continue to be increased enforcement penalties against employers. According to ICE, in 2012 the agency made:

-520 criminal arrests tied to worksite enforcement investigations, of which 240 were owners, managers, supervisors or human resources employees. They face charges such as harboring or knowingly hiring illegal aliens. The remaining workers who were criminally arrested face charges such as aggravated identity theft and Social Security fraud.
-Homeland Security Investigations served 3,004 Notices of Inspection and 495 Final Orders, totaling $12,475,575.00 in administrative fines.
-ICE debarred 376 business and individuals for administrative and criminal violations.

While these enforcement figures are fairly low, jobs in the US are still the magnet that attracts both legal and illegal immigration. As we have seen, when the economy is doing well, more immigrants come to the US. When employment slows, so does legal and illegal immigration.

Potential Penalties
Civil fines for employers who violate I-9 rules include $110-$1100 per paperwork violation or $375-$15,000 per knowing hire/continuing to hire violation per employee. Recent legislative proposals include increased fines for employers by factors of three to ten times what they are now. Employers can be penalized for technical “paperwork” violations (failing to complete I-9s, failing to properly complete I-9s, failing to keep I-9s, etc.) as well as for “knowingly hiring or continuing to hire unauthorized workers.” “Knowing” includes “constructive knowledge.” In addition, there are criminal penalties for a “pattern or practice” of knowingly hiring or continuing to hire undocumented workers. Penalties can include asset forfeitures if used in a crime, as well as debarment from various federal programs, business forfeitures, liability for back wages, damages, and legal fees and costs. In other words, it can be very, very expensive to hire undocumented workers just to save on payroll expenses or to “help someone out as a favor.” There are also the burdens and costs of public relations nightmares, fiduciary duties owed to shareholders, and loss of management and executive time, if not service to the company, if the CEO, owner, officer or manager is found liable. In egregious cases, employers may be dealing with USCIS, ICE, the IRS, Social Security, US Department of Labor, state labor offices, prosecutors, and potentially the SEC (relating to public filings and disclosures about company liabilities).

ICE publishes its penalty schedule. ICE considers five factors in determining penalties: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations. Every employer should review ICE’s description of the I-9 audit process including the “enhancement matrix” based on the above listed five factors.

Employers should plan how the company or organization will respond in case of a Notice of Inspection (NOI). Employers have only three days to respond. Calling the company lawyer, who may not practice immigration or employment law, or contacting an immigration lawyer for the first time upon receiving a NOI, with only three days to respond, can make it very difficult to review personnel records and I-9s and/or to formulate an effective response in a short time frame under stressful conditions. Rather, companies should review their employment and compliance practices before ICE comes knocking on the door. Conducting an internal audit with counsel and training appropriate personnel to handle I-9s should be done well in advance.
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In an earlier post, Prosecutorial Discretion: “Backdoor Amnesty”? 9 Myths Debunked, I discussed the latest announcement from the Department of Homeland Security (DHS), that it will work with the Immigration Courts to cull from its docket “low priority” cases. The August 18, 2011 announcement by Homeland Secretary, Janet Napolitano, makes reference to two June 17, 2011 memos from Immigration and Customs Enforcement (ICE) discussing the criteria ICE should be using to determine if and when it will exercise prosecutorial discretion. As mentioned in the earlier post, discretion comes into play when the agency decides, weighing the good facts with the bad for a particular individual believed to be in the U.S. without proper documents, whether to arrest, detain, place in removal proceedings, continue with removal proceedings, or carry out an order of removal. So, just what are the criteria ICE will consider, and what will the courts consider in deciding whether to keep a case on its docket? Keep in mind that there were actually two memos issued on June 17, 2011 addressing broader enforcement priorities and one devoted to victims and witnesses of crimes and plaintiffs in civil proceedings.

General Enforcement Memo
The broader, more general memo on civil immigration enforcement priorities, mentions these factors to consider in deciding whether to favorably exercise discretion:

• the person’s length of presence in the United States, with particular consideration given to presence while in lawful status;
• the circumstances of the person’s arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
• the person’s pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;
• whether the person, or the person’s immediate relative, has served in the U.S. military,
reserves, or national guard, with particular consideration given to those who served in combat;
• the person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants;
• the person’s immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;
• whether the person poses a national security or public safety concern;
• the person’s ties and contributions to the community, including family relationships;
• the person’s ties to the home country and conditions in the country;
• the person’s age, with particular consideration given to minors and the elderly;
• whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
• whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;
• whether the person or the person’s spouse is pregnant or nursing;
• whether the person or the person’s spouse suffers from severe mental or physical illness;
• whether the person’s nationality renders removal unlikely;
• whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;
• whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and • whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.

ICE states: “This list is not exhaustive and no one factor is.determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities.”
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On August 18, 2011, Secretary Janet Napolitano, announced that her office, the U.S. Department of Homeland Security (DHS), will work with the Immigration Courts in the Executive Office of Immigration Review (EOIR), to review over 300,000 pending court cases to determine which ones are “low priority” and can be closed or terminated. This will enable DHS and EOIR to focus scarce resources on dangerous criminals and terrorists. Locally, DHS has already been reviewing the detention status of immigrants currently locked up in immigration jails to determine who is low risk and can be released. This announcement follows two DHS memos issued on June 17, 2011 clarifying “prosecutorial discretion” criteria for victims and witnesses of crimes, and summarizing enforcement priorities for the field based on prior memos on the subject.

What is “prosecutorial discretion”? It is the agency’s and individual law enforcement officer’s decision making process, weighing the favorable facts with the unfavorable facts to determine whether to prosecute, in this case civilly, any individual who has broken the immigration laws. There are three main areas where prosecutorial discretion can be carried out in the immigration enforcement area: 1) before a person is placed in removal proceedings in Immigration Court (whether to arrest, detain and/or commence removal proceedings), 2) while in removal proceedings (whether to continue or terminate removal proceedings) and 3) after an order of removal has been issued (whether to carry out removal of the person, defer or withhold removal). Criminal law enforcement agencies and prosecutors use their discretion every day to decide who to prosecute or not. (A current example would be the Dominque Strauss-Kahn affair.) Similarly, immigration officers decide every day whether to put someone in removal proceedings, continue proceedings or carry out removal orders if there other other equities or already existing eligibility for immigration benefits. Therefore, prosecutorial discretion is not new.

However, a combination of recent factors have contributed to the most recent pronouncement dealing with court backlogs. Last year, DHS deported almost 400,000 people and is on target to do the same this fiscal year. As a result, the Immigration Courts are experiencing stunning backlogs with the average case taking 439 days for a merits hearing. In addition, the Administration has mandated that Secure Communities will be in every state along with the Criminal Alien Program in which DHS combs the jails for individuals without status, whether or not they have been charged or convicted of a crime.
Therefore, it makes obvious sense for the courts to prioritize cases based on the objectives mentioned above.

MYTH 1: DHS and the Courts can’t do that!

Congress makes the laws and Courts interpret the laws. The administrative agencies of the Executive Branch (under President Obama) carry out the laws enacted by Congress. Inherent in each agency’s authority is the discretion to determine how the agency will enforce the law within the bounds of the agency’s legal authority to act. When Congress enacts a law, it is generally with broad strokes. Then, each agency involved implements regulations and policies about how the statute will be implemented. In this case, Congress has not enacted any new statutes. The agencies involved with immigration enforcement are taking a look at the way in which they carry out the regulations and polices with the resources they have. There is both agency-wide prosecutorial discretion as well as individual officer prosecutorial discretion out in the field. Where a particular action is mandatory in the law, the agency/officer must carry it out. In an era of limited resources, the agency must consider how and where to spend its resources. This applies to all agencies of the government. With severe budget cuts to look forward to, all federal agencies are prioritizing how they will spend limited funds within the bounds of their authority. In this case, DHS has announced that its priorities are to protect national security, public safety, border security and to proect the integrity of the immigration system. While it is arguable that every single person found to be in the U.S. without status should be prosecuted to the fullest, the fact is, the surge in arrests has clogged the jails and the courts. In additional, the states that now prohibit immigrants from getting drivers licenses are clogging their local courts with cases involving driving without a license or similar minor offenses. Secure Communities and the Criminal Alien Program route these individuals to ICE and the Immigration Courts, creating huge pressures on the system and lengthy backlogs in the Immigration Courts.

MYTH 2: Prosecutorial Discretion is “Backdoor Amnesty”

Congressman Rep. Lamar Smith (R-Tx), leader of the House immigration restrictionists, and others with his view, such as the Center for Immigration Studies, FAIR and other anti-immigrant groups, claim the exercise of prosecutorial discretion by DHS and the Courts is “backdoor amnesty.“. This simply is not true! Because Congress has refused to enact meaningful immigration reform legislation, immigrants’ rights organizations have asked the Obama administration to make use of already existing powers the agencies have to exercise discretion in order to provide some humanitarian relief to long term residents and to cut back on splitting up families. However, even among immigrants’ advocates, the prosecutorial discretion memos do not solve what is broken about our immigration system. After three years of President Obama as the greatest “Deporter-in-Chief” in the nation’s history, his office is exhibiting some common sense by having DHS concentrate its limited resources on “high priority” cases, depending upon how that is ultimately defined and actually carried out.
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An article in the Wall Street Journal and another in Packer News report that “in an email” to an unknown source, Immigration Customs and Enforcement (ICE) said it will issue I-9 audit notices to over a 1000 employers as part of its national strategy to get more employers to stop hiring workers without legal employment status. Notices to Inspect will be issued across industries. This should come as no surprise to employers. In my post last month, ICE to Establish I-9 Center and Increase Audits, I mentioned that ICE set up a new I-9 Compliance Center. The Center is in Crystal City, Virginia and will house 15 auditors. It sounds like a drop in the bucket in terms of staffing. ICE reported on January 20, 2011, that “from fiscal year 2009 to date, ICE has initiated Form I-9 inspections against 3,769 businesses across the nation.” This still doesn’t seem like many employers are audited, but fines can run into the millions of dollars for a single employer. With the new Compliance Center, ICE means business, and no doubt will seek to exceed the annual numbers of audits.

Employers are encouraged to conduct in-house audits with professional assistance BEFORE ICE comes knocking on the door with a three-day notice to turn over I-9s. If an employer has not been using I-9s at all, or lacks an efficient and compliant system, three days is very little time to become compliant. Moreover, an audit can be very stressful for staff, not to mention expensive if counsel is brought in when there is a crisis, given the short notice. In addition, costly mistakes can be made in the process of getting ready to turn documents over to ICE. For example, improperly editing I-9s or throwing out old ones could result in fines.

What’s the worst that can happen to an employer in an ICE audit situation? Here is a non-exclusive list of what non-compliant employers can face:

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A Wall Street Journal article, Crackdown on Illegal Workers Grows, reports that Immigration Customs and Enforcement (ICE) will open a new “Employment Compliance Inspection Center” to handle an increase in I-9 audits of employers of all sizes, including large, major employers. Under the Bush administration, ICE focused on rounding up undocumented workers through surprise raids. By contrast, the Obama administration is conducting stealth, “silent” audits of employer documents. Where false documents or unverified documents are revealed, or no I-9s are prepared at all, employers are liable for paperwork violations as well as “knowingly” hiring unauthorized workers. Undocumented workers discovered during the process are often fired and may be pressured to become witnesses against the employer. Naturally, employers are thought to be the lure for illegal immigration.

Last fiscal year ending September 30, 2010, 2,740 companies were audited by ICE and $7 million in civil fines were levied on businesses that employed illegal workers. This represents a substantial increase than in past years. Now ICE really means business as it ramps up its operations even more.

To help employers, the government recently released a new version of its Guide for Employers (M-274) discussed in an earlier post. It is a good idea for employers to review ICE’s range of and type penalties to better understand the potential for liabilities. ALL employers are required to complete form I-9s for employees hired, recruited or referred for a fee after November 4, 1986, including U.S. citizens.

Doing a self-audit of I-9s, such as by in-house H.R. professionals or company executives is probably not a good idea. It is recommended that employers use third party auditors or attorneys to conduct an in-house I-9 audit before ICE comes knocking on your door (or sends a three-day notice of inspection). Our firm has had calls by employers who simply want to put our name down as a third party auditor in a subcontract with the potential client’s contracting firm in case of an ICE audit. We generally oppose this unless the company first hires us to do a complete private audit in order to get to know the company, the key personnel devoted to I-9 compliance, its operations and workforce with plenty of time to review all I-9s and related documents. We also provide training for the staff that will handle the I-9 process. This saves time if the client later gets a notice of audit or inspection. It would otherwise be too stressful to put together a plan, make corrections, if allowed, in only three days.
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584383_united_states_passport.jpgImmigration enforcement legislation creates problems for U.S. citizens as well as for immigrants. Over the last few years, we have seen growth in our American citizen clientele because of new federal and state documentation burdens enacted under the guise of national security or to combat illegal immigration. The most common refrain we hear is: “I grew up in the U.S. I always thought I was an American but never had anything to show for it and I never needed the proof until now.” Ironically, we hear the same thing about the children of undocumented immigrants who have grown up in the U.S.; only now we are dealing with “undocumented Americans.”

Documentation burdens affecting American citizens include:

WHITI: WHITI stands for the Western Hemisphere International Travel Initiative. WHITI requires U.S. citizens to have one of these types of documents when returning from Canada, Mexico, the Caribbean or Bermuda: passports, enhanced drivers’ licenses, military cards with travel orders, Merchant Marine Cards, I872 American Indian or Enhanced Tribal cards, Trusted Traveler Cards (see below), or in the case of children under 16, original birth certificates, evidence of birth recorded abroad, or naturalization certificates.

The number of Americans holding U.S. passports has been fairly low compared to other countries, but filings have substantially increased in the last two to three years as WHITI was fazed in. Now, more Americans need passports or one of the documents listed above to re-enter the U.S. from travel destinations not far from the U.S. U.S. Customs and Border Protection (CBP) has a useful “Know Before You Go” brochure describing what documents are needed. Keep in mind that the cheaper Enhanced Drivers License only allows for reentry from specified countries, and only some states offer it. A U.S. Passport is more flexible and required for travel from other countries around the world. You can learn about Washington State’s Enhanced Drivers License here. To obtain a passport, see the U.S. Department of State’s website.
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It still surprises me 24 years after enactment, how many employers still don’t know about their I-9 obligations under the Immigration Reform and Control Act (IRCA) of 1986. Since then, employers are required to complete Form I-9s documenting the work permission status of employees hired after November 6, 1986, including U.S. citizens. Even among employers who know of their I-9 obligations, many still do not fully understand the scope of the I-9 process and record keeping requirements; nor the extent to which Immigration and Customs Enforcement (ICE) has substantially ratcheted up their audits, investigations and sanctions. (See my earlier post on I-9 Form Revisions Subject of USCIS Stakeholders Meeting.)

ICE is the agency responsible for employer audits and raids. Employers should review the ICE press releases to see the size and scope of fines, the mistakes made by employers and the severity of penalties, including criminal indictments. Employers can be fined for failure to complete I-9s at all, for failure to properly complete and retain I-9s, and for “knowingly” hiring unauthorized workers. There are criminal consequences for continuing to hire unauthorized workers, especially after an audit, for a pattern or practice of knowingly hiring unauthorized workers and for more serious offenses such as harboring, smuggling, dealing in or accepting fraudulent documents and related offenses. ICE has been known to indict not just owners and shareholders, but also individual employees, supervisors and managers engaged in such schemes.

A quick look at the ICE website list of press releases concerning workplace enforcement shows these recent examples of settlements or criminal investigations. Every employer should take note:

  • Brownwood Furniture, California – criminal information filed charging president and primary shareholder with obstruction of justice and continuing to hire unauthorized workers;
  • Timbuktu and By the Docks Restaurants, Maryland – owner sentenced to prison for harboring for private financial gain and competitive advantage 24 unauthorized workers some of which he housed. His sentence included $250,000+ fine and forfeiture of another $300,000 in property. He had continued to employ unauthorized workers, and accepted false documents despite a prior enforcement action. He had also received Social Security mismatch letters [a confusing subject and whole other can of worms] and failed to complete I-9 forms.
  • Masters in Metal, California – owners criminally charged for continuing to hire unauthorized workers following I-9 audit three years earlier finding several employees had fake green cards. Although the company reported these people were later terminated, some were apparently in fact not terminated.
  • Abercrombie and Fitch, Michigan – settled $1,047,110 fine for “technology deficiencies” in its I-9 verification system. (See an earlier post, Million Dollar Fine Imposed on Abercrombie & Fitch for I-9 Technology Deficiencies);
  • IFCO Systems, Texas – five managers indicted for conspiring to hire unauthorized workers following a tip at its New York plant;
  • Koch Foods, Ohio – settled a $500,000+ fine for administrative I-9 violations after 161 unauthorized workers were arrested pursuant to a search warrant;
  • 180 Audit Notices issued March 2, 2010 in five southern states;
  • Pilgrams Pride, Texas $4.5 settlement for hiring unauthorized workers at seven plants;
  • 652 Notices of Inspection issued to employers in 2009.

Referring to the one page I-9 form as “an obscure federal document, NPR posted an Associated Press (AP) story about I-9s on November 1, 2010 in “Warnings Abound in Enforcing Immigration Job Rules”, in which the Abercrombie and Fitch case was discussed. AP was able to obtain and analyze summaries of 430 ICE audits conducted between July 1, 2009, and January 31, 2010.
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