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When ICE comes knocking

By: dmc-admin//June 18, 2007//

When ICE comes knocking

By: dmc-admin//June 18, 2007//

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The federal government is stepping up efforts to investigate and charge businesses for employing illegal workers. The number of administrative and criminal charges brought against employers and employees has risen dramatically since U.S. Immigrations and Customs Enforcement (ICE) was created in 2003.

In the last five years, ICE reports that worksite criminal arrests nationally have increased 2,772 percent and administrative arrests have increased 656 percent. Figures for criminal arrests showed a dramatic increase from 25 in 2002 to 718 in 2006. The agency’s information sheet on worksite enforcement also shows an increase in administrative arrests from 485 to 3,667 during that same period.

Given the increase in charging for practices related to the potential hiring of unauthorized workers, attorneys need to be counseling their businesses clients about how to avoid problems. Several immigration attorneys have offered their suggestions of the best ways to avoid problems when ICE comes knocking.

Be Prepared

Benjamin T. Kurten, an immigration attorney at Quarles & Brady LLP in Milwaukee, said attorneys need to be getting their business clients ready before ICE arrives.

“What you really want to do before it gets to that point is to be prepared, so that if they do knock on your door, you are as compliant as you can possibly be,” Kurten said during an interview.

Handling I-9 forms properly is one of the most important controls employers have right now, he added.

Erich C. Straub, another Milwaukee-based immigration attorney, also stressed the importance of preplanning.

“The first thing that every employer can do is have policies and procedures in place to have an effective I-9 compliance program within their company,” said Straub, who chairs the Wisconsin Chapter of the American Immigration Lawyers Association (AILA).

The core of that policy needs to state that the employer will not knowingly hire unauthorized workers.

Immigration and employment attorneys have offered the following recommendations for businesses clients when handling of I-9 documents.

Develop a policy that you will only recruit, hire and retain authorized workers.

Create effective policies and procedures for handling and auditing I-9s with the help of an attorney.

Limit the number of employees collecting and handling I-9 information.

Establish effective training for anyone involved with the I-9 process to help understand the form and identify valid supporting documents.

Allow employees to decide which of the approved documents they will supply.

Do not photocopy documents provided by employees.

Develop a policy for responding to reports of unauthorized workers.

Establish a policy for termination of employees who are determined to be unauthorized.

Apply this policy uniformly to all employees to avoid discrimination.

Store I-9 forms separate from all other employment files.

“What you want to do even if you are the smallest company is to have a policy, either written or unwritten, of insisting on hiring and retaining only authorized workers,” Kurten said.

Limit Responsible Parties

Geoffrey A. Lacy, who practices business immigration, as well as labor and employment law at Davis & Kuelthau, s.c., in Green Bay, noted the importance of limiting the number of people responsible for handling I-9 activity. Lacy, Straub and Kurten stressed the need to ensure that anyone responsible for handling I-9s be adequately trained regarding what is required.

Those individuals need to know what documents are acceptable. One of the common mistakes that Straub noted occurs when employers don’t understand the differences between documents identified in sections A, B and C of the I-9 form. If someone has a document identified in section A, that is the only thing they must show because it establishes the individual’s identity and employment eligibility. As an alternative, an employee can show a document from both sections B (establishing identity) and C (establishing employment eligibility).

Employers are not allowed to tell employees what types of documents they should provide. All three attorneys stressed the importance of allowing employees to choose the documents they will show.

“A lot of employers will say, ‘You have to bring a driver’s license and Social Security card. We don’t accept passports or whatever.’ That is illegal in and of itself,” Lacy warned.

It is the employee’s choice as long as it fits the I-9 criteria.

“Understand exactly what you need and don’t go any further,” Straub said.

Document Expertise

While employers are not expected to be document experts, they do need to be familiar enough with all of the allowable identification to make an appropriate judgment of its validity.

The Immigration &a
mp; Naturalization Service has its Employer Handbook, designed to provide employers with instructions for filling out the I-9 form. The handbook contains copies of the different types of acceptable documents. A PDF version of the handbook is available at www.uscis.gov/files/nativedocuments/m-274.pdf.

Although it’s common practice for employers to photocopy the supporting documents, the immigration attorneys noted that the law does not require it. Instead, they urged against that practice, noting that making copies opens employers up to being second guessed during an investigation. Problems could also arise from a poor reproduction, which might make the document appear as if it were altered.

Once business clients have those completed I-9 documents, they should avoid another common mistake — storing the forms with the rest of the employment documents. Instead, they should be stored in a separate location. Straub noted that confidentiality issues arise if ICE comes to look at the I-9 documents and they are stored with the rest of the employment files.

ICE helps employers with IMAGE

At the same time that it is stepping up worksite enforcement efforts, U.S. Immigrations and Customs Enforcement (ICE) is also promoting a program to help employers with their hiring practices and I-9 compliance.

In a statement on worksite enforcement, ICE identified several reasons that it has developed what it describes as a comprehensive strategy to address hiring and employment practices. Those include “promoting national security, protecting critical infrastructure and ensuring fair labor standards.”

“Under this new strategy, ICE is targeting unscrupulous employers of illegal aliens, seeking to initiate criminal prosecutions and cause asset forfeitures,” the statement read. “ICE believes that the serious nature of these actions on culpable individuals will be a more sufficient deterrence to those who may not share the goal of fostering a sound and legal workforce.”

However, for those employers who want to head off potential problems with unauthorized workers, ICE has developed its ICE Mutual Agreement between Government and Employers program. The agency describes IMAGE as a voluntary program to help companies “reduce unauthorized employment and the use of fraudulent identity documents.”

ICE provides training on hiring procedures, fraudulent document detection, use of a special verification program, and antidiscrimination procedures. Gail Montenegro, an ICE spokesperson, acknowledged that employers are not expected to be document experts. Participants must submit to an I-9 audit by ICE and verify the Social Security numbers of their existing workforce.

“By voluntarily signing up for the IMAGE program, they agree to submit to an I-9 audit from us,” Montenegro said. “By that, we are going through the documents and verifying all of this information that is provided.”

The program provides a set of best hiring practices and is open to businesses of any size.

In a written response, ICE spokesperson Timothy J. Counts stated, “Following the best practices that are part of ICE’s IMAGE program is the best way to ensure a legal workforce. It’s also an employer’s best defense when it comes to avoiding criminal charges. Following the best practices shows the employer is exercising due diligence in his or her hiring practices.”

Employers could still get duped by unauthorized employees with fraudulent documents, Counts noted, but participation in the IMAGE program provides a source of confidence.

Benjamin T. Kurten, an immigration attorney at Quarles & Brady LLP in Milwaukee, questioned whether ICE would begin an enforcement action against an employer if they found something suspicious during the audit process. Kurten said he is watching the IMAGE program to see how participants are treated.

“I’m waiting to see how that really is working out for people before I recommend it for my clients,” Kurten said.

Counts indicated that during the initial audit process it was possible that an employer would find out that the business employed one or more illegal aliens. However, that was not automatically a problem for the employer.

“These employees can no longer continue to work for the company, of course,” Counts stated. “But, assuming there’s no evidence that the employer was complicit in knowingly hiring or continuing to employ the illegal alien, there’s nothing to worry about. We assist the employer in finding ways to avoid such a situation in the future.”

More information about the IMAGE program is available on ICE’s Web site. That site also contains a list of ICE’s Best Hiring Practices.

— Tony Anderson

Lacy agreed, “They are only allowed to inspect I-9 forms, but they are allowed to inspect them in whatever files they are maintained. That means employers should be advised that they should keep I-9 forms completely separate from any other personnel files.”

Uniform Treatment

Kurten also stressed the importance of developing a policy to respond to reports of unauthorized workers and to establish a policy relating to the termination of employees who are determined to be unauthorized.

All of these recommendations need to be applied uniformly to all employees. Employers cannot decide that an individual poses a higher risk of being an unauthorized worker; therefore, they will seek additional documentation to protect themselves. Engaging in such discriminatory practices will only lead to additional potential problems.

“One of the areas you run into trouble is if you have a Hispanic worker come in and you require more documentation from them because you have the misconception that all Hispani
c workers are more likely to be undocumented,” Straub said.

“The main thing for employers is you have to make sure that you are not being discriminatory,” Kurten warned. Employers are expected to make a best effort to ensure that problems do not arise, but those need to be balanced with protecting the rights of employees.

“For the most part, if [ICE] sees that the employer is doing the best they can, they are going to work with the employer,” Kurten said. “They will be fairly sympathetic, but that does not mean they won’t fine you to get your attention about some obvious errors.”

The ICE Man Cometh

What happens if ICE agents actually knock on the door?

Business clients have two different response options based on the situation, depending on whether or not the ICE agents have a warrant. If they do not have a warrant, the business owner can refuse entry to the agents. However, ICE does have the right to return in 72 hours to review documents.

“They can come in without a warrant and request to inspect them, but you have a right to three days to comply and put your records together before they are allowed to come in and take them,” Straub explained.

If that happens, he said, they should contact an immigration attorney immediately. Straub noted that general practice attorneys and businesses can locate immigration attorneys using AILA’s Web site (www.aila.org), which has a lawyer search function.

However, Straub’s advice is a little different if ICE agents arrive with a warrant. “You get out of the way. You don’t impede the investigation,” he said. Business owners or managers should contact their attorney right away and refrain from saying anything without an attorney present. That advice is true even if faced with the prospect of going to jail.

“The damage you can do to your case unintentionally and innocently far outweighs spending a night in jail,” Straub said.

Once again, preplanning can help. All three attorneys recommended developing a crisis response plan in case ICE arrives. That plan should be developed in conjunction with the business’ regular attorney as well as an immigration attorney and perhaps a criminal defense attorney.

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The business needs to identify specific managers or officers who are designed to deal with the agents on behalf of the company. Unless specifically stated in a warrant, the ICE agents are not allowed to question employees about an employer’s hiring practices.

Kurten noted that a problem arises when ICE shows up and employees start to run. At that point, the officers have probable cause to detain them.

Finally, Lacy said, employers need to regularly review their I-9 process to ensure that information is up to date and that the process is being handled appropriately and consistently.

“Like any other H.R. system, you should perform regular audits of your I-9 process,” Lacy said.

“It’s not a complicated thing, but it’s easy to make stupid mistakes.”

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