ICE Raids and Advising your Corporate ClientsAILA Texas/New Mexico/Oklahoma Chapter, Spring

Conference 2015

Faye M. Kolly, DMCA LLP

Susan K. McConn, Foster LLP

J. Jay Strimel, Jackson Walker L.L.P.

Overview of Session

• Summary of Immigration-Related Investigations

• Administrative Investigations through the Notice of Inspection

• Penalty Assessments and Negotiations

• Compliance and Training

• Ethical Considerations in Representing Clients through Investigations

Government Agencies Involved in Immigration-Related Inspections

• U.S. Immigration and Customs Enforcement (ICE) through Homeland Security Investigations (HSI)• Engages in worksite enforcement through audits of Forms I-9s; initiates criminal

investigations in cooperation with U.S. attorneys of the U.S. Department of Justice (DOJ)

• U.S. Department of Labor (DOL) Wage and Hour Division (WHD) • Conducts immigration-related investigations, primarily involving H-1B visas and worker

protections of DOL regulations for U.S. citizens and H-B workers

• U.S. Citizenship and Immigration Services (USCIS) through the Fraud Detection and National Security (FDNS) division• Pursues random and targeted worksite investigations of employers sponsoring foreign

workers

ICE HSI Worksite

Enforcement Strategy

• On April 30, 2009, ICE HSI rolled out a revised strategy prioritizing criminal prosecutions against employers that:• Utilize unauthorized workers as a business

model

• Mistreat workers

• Engage in human smuggling or trafficking

• Engage in identity and benefit fraud

• Launder money

• Participate in other criminal conduct

• ICE HSI now also placing increased emphasis on compliance and outreach to deter illegal employment and to create a culture of compliance, actively promoting the ICE Mutual Agreement between Government and Employers (IMAGE) outreach program

Worksite Raids• Usually without notice and may

result in instant loss of key personnel

• May be a collaboration between ICE and DOJ for more serious criminal violations

• Clients should immediately contact in-house and/or outside legal counsel (immigration, employment, criminal, as may be applicable)

• Request to review warrant; record list of all documents, equipment, personnel seized by IC

• Be prepared for media attention

Notice of Inspection (NOI)

• Administrative inspection compelling the production of Forms I-9

• Usually also request supporting documents and employee roster (incl. names, dates of hire, SSNs). Scope may expand to payroll records, employment applications, business licenses and more.

• Employers provided at least 3 business days to produce documents requested• CAUTION: Be sure your clients know NOT to sign the waiver of

this 3 day deadline

• Oral instructions of officer are critical to compliance

NOI: First Steps

• Discuss scope of representation and fees with client; engage criminal counsel if necessary

• Contact the Forensic Auditor and/or Special Agent in Charge to confirm scope of inspection and deadline; an extension may be requested though not always granted

• Submit a duly executed Form G-28

• Review client’s Forms I-9, supporting documents, and any other documents subject to the inspection

• If corrections could be made, confirm with ICE that such action is permissible

• Determine with client who will be notified at the worksite – Everyone? Only a “need to know” basis?

• Address potential need to replenish workforce

NOI: Mitigations on Forms I-9

• All mitigations, completions, etc. should be done in red ink (or a different color ink than was originally used), with the initials of the individual and date corrections were made

• NEVER use white-out, opaque marker, etc.

• Only the employee may correct errors in Section 1; only the employer may correct errors in Section 2• Consider how requesting employees to make corrections may

spread fear among the workforce and loss of personnel. Client may only want to make Section 2 corrections that do not require employee involvement at this stage.

• Mitigations made after the service of an NOI may not eliminate liability; ICE places more good faith on an employer who proactively audits prior to an inspection

NOI: Response Submission

• Copy ALL documents surrendered

• Opt for hand delivery whenever possible to better protect original documents

• Expect several weeks or even months before any response, which may initially come in the form of one or all of the following:• Notice of Technical or Procedural Violations

• Notice of Suspect Documents

• Notice of Discrepancies

Notice of Technical or Procedural Violations

• List of paperwork violations that may be correctable (ex: incomplete address; missing date of birth)• Contrast substantive violations (ex: failure to record document

information; no signature)

• Employer is given 10 business days to make corrections [INA § 274A(b)(6)(B); 8 U.S.C. § 1324a(b)(6)(B)]

• After 10 business days, any uncorrected technical/procedural failures become substantive violations

Notice of Suspect Documents

• ICE determines through reviewing the Form I-9 and supporting documentation that an employee is unauthorized to work

• Employer and employee have the option to present additional documentation to demonstrate work authorization

• Employer is advised of the possible civil and criminal penalties for continuing to employ the individual

Notice of Discrepancies

• Advises the employer of ICE’s inability to confirm work eligibility of an employee based on the Form I-9 and supporting documentation

• Includes Notice to be signed by the Employer and Employee – retain copies

• Employee has the opportunity to present ICE with additional documentation to establish employment eligibility

• Employer should NOT take adverse action against the employment of individual(s) listed without express authorization from ICE

Possible Results

• Warning Notice: Lucky client (with a great attorney)! ICE determination that any violations identified do not warrant a penalty; expectation of future compliance

• Notice of Substantive Violations: Indicates types and number of violations; high percentage of violations may indicate higher fine being assessed

• Notice of Intent to Fine: Outlines allegations and charges against Employer and any proposed penalties; opportunity to negotiate on behalf of client; may request hearing before OCAHO within 30 days of receipt (most cases are settled or decided during prehearing rulings and do not reach evidentiary hearing stage)

• Final Order to Cease Violations and Pay Fine: Orders Employer to pay penalty and cease and desist from violations; not appealable

Potential Sanctions

• Civil fines, 8 CFR § 274a.10(b)

• Substantive/uncorrected technical violations: $110-$1,100

• Knowingly hiring/continuing to employ violations: $275-$9,800 (violations occurring between 9/29/1999 and 3/27/08); $375-$16,000 (violations occurring on or after 3/27/08)

• Document fraud: $375-$6,500

• Document abuse: $110-$1,100

• Unlawful discrimination: $375-$16,000

• Criminal penalties, 8 CFR § 274a.10(a)

• Pattern or practice of violations: $3,000 and up to 6 months prison

• Debarment

• Indemnity bonds: $1,000 and return of any amounts received, 8 U.S.C. § 1324(a)(g)(2)

• Court ordered back pay for discrimination

• And more…

Mitigating

Factors

ICE will consider five factors in determining civil monetary fines [8 CFR § 274a.10(b)(2); 8 U.S.C. § 1324a(e)(5)]:

• Business size;

• Good faith;

• Seriousness of violations;

• Whether the violation involved unauthorized workers; and,

• History of violations

Factor Aggravating

Mitigating Neutral

Business Size

+ 5% - 5% +/- 0%

Good Faith + 5% - 5% +/- 0%

Seriousness

+ 5% - 5% +/- 0%

Unauthorized Aliens

+ 5% - 5% +/- 0%

History + 5% - 5% +/- 0%

Cumulative Adjustment

+ 5% - 5% +/- 0%

Flow Chart of Adverse Inspection

Process

An Ounce of Prevention

• INA § 274A(e)(6) – Good Faith Compliance

• If able to establish compliance in good faith with the requirements for hiring and recruiting of employees it provides an affirmative defense, INA § 274A(a)(3)

• Exception: No good faith defense for pattern or practice of violations, INA § 274A(e)(6)(C)

• Work with client to take a proactive approach to ensure the eligibility of their employees to work in the U.S. by developing a compliance plan and running regular internal I-9 audits

Compliance and Training

• Employers are becoming increasing aware of immigration compliance particularly in the context of violations regarding the Immigration Reform and Control Act (IRCA) for I-9 form errors and/or hiring/employing unauthorized workers, for citizenship or national origin discrimination or document abuse, and state immigration laws for failure to enroll and use E-Verify where state law requires.

• As counsel you can assist your clients by:• In-house training of HR and managers on I-9

compliance

• Developing I-9 compliance policies

• Conducting in house I-9 review

• Assisting the in development of I-9 self-audit

Compliance Plan Checklist

• Establish and clearly document company hiring practices, procedures and policies

• Keep all corporate communications regarding hiring practices

• Train and document training for all responsible staff regarding the hiring process and proper completion of the Form I-9

• Make sure it is clear that EVERY employee and new hire is treated the same when it comes to hiring practices, I-9 completion, documents and verification systems

Compliance Checklist continued

• Ensure a Form I-9 is completed for EVERY employee

• If enrolled in E-Verify, ensure that EVERY new hire subject to the MOU is run through E- Verify

• Require language in contract with all independent contractors and subcontractors to affirm their I-9 compliance for all of their employees

• Make sure I-9 Forms are stored and maintained as required

• (Optional) May consider running employees SSA through verification system

• Document, document, document. Make sure there is documentary evidence of the above to be able to present to ICS when the jack-booted thugs come to the door. It will go a very long way towards establishing an affirmative defense.

Who talks to the Federal Agent(s)?

• Make sure client has a primary and several secondary managers who are designated to speak with Federal Agents. Be certain that all employees know that if approached by a Federal Agent they are not to provide information or documentation regarding the company business. Rather, they should refer them to the appropriate manager.

Compliance and Training: Do’s

• Employers should give new employees a Form I-9 and the list of acceptable documents on their first day on the job or at the time of hire.

• New employees should complete the Form I-9 on the first day of employment.

• Employers should make sure the employee signs and dates the I-9 in Section 1.

• Employers should review the original documents presented by the employee during the I-9 process.

• Employers should make sure that the documents appear to be genuine and belong to the employee.

• Employers should make sure to list a document in column C if one is listed in column B.

.

Compliance and Training: Do’s (continued)

• Employers should re-verify work authorization in ninety days when a receipt for a replacement document is accepted As applicable, employers should have translators or preparers who help the employee fill out the form sign and date the form I-9.

• Employers should make sure all boxes requiring signature are completed and signed.

• Employers should develop a practice to keep the Form I-9’s separate from all other Human Resources documents.

• Employers should develop a practice to keep the Form I-9’s for current employees from former employees separate.

• Employers should re-verify status or work authorization documents with expiration dates.

• Allow the employee three days to produce acceptable documents at the time of re-verification.

• Be consistent with all employees and job applicants regarding documentation requirements.

Compliance and Training: Don’ts

• Employers should not question documents that are on the list unless they obviously appear to be fake.

• Employers should not refuse any document that is on the acceptable list unless it appears fake. (M-274)

• Employers should not suggest specific documents from the acceptable documents list or require specific documents from outside the list.

• Employer should be aware not to list any document in column B or C if a list A document is used in column A. Employers should not list more than one document in any column (A, B, or C).

• Employers should not accept a social security card marked “not valid for employment without authorization” unless the employee has presented additional proof of work authorization.

Compliance and Training: Don’ts (continued)

• Employers should accept USCIS receipts and the Federal Registrar to replace a preexisting work authorization document in lieu of the document itself. (TPS, Extension of Status, Change of Employer).

• Employers should not keep the Form I-9’s with employee personnel or payroll files.

• Employers should not keep Form I-9’s longer than required, this increases liability.

• Employers should not keep I-9 verification documents or if they do, they should not over-document.

• Employers should not re-verify “green cards” with expiration dates.

Dual Representation: Ethical Considerations

• Immigration matters frequently involve a situation where dual representation occurs.

• For example when both a petitioner (employer and a beneficiary) are represented by a single immigration attorney or law firm. Dual representation occurs, when the filing of an immigration matter has legal implications for both parties.

• Generally, the same immigration counsel can fairly represent both parties in immigration matters, and common representation is often the most efficient and cost effective.

• Situations in which a conflict of interest may arise:

• Lateral Wage and Hour actions (e.g. for back pay or wage violations)

• Internal review of I-9s where a worker may not be in compliance

• Circumstance where submission of a petition triggers an audit and employee may or may not be in compliance

• Newly found ground of admissibility where counsel represents adjustment of status applicant

Dual Representation: Ethical Considerations

• Duty of Loyalty: Generally, when a current client holds a differing or adverse interest to another current client, the attorney must, at least, make full and fair disclosure of the conflict to both clients.

• Duty of Confidentiality: Specific ethics rules mandate that a lawyer not use confidential information disclosed during the course of the representation to the disadvantage of the client without the client's informed consent. Rule 1.05, Texas Rules of confidentiality: http://www.texasbar.com/AM/Template.cfm?Section=Ethics_Resources&Template=/CM/ContentDisplay.cfm&

• "Simple Solution” approach to representation hinges on the fact that only the employer signs the petition and the attorney's Notice of Entry of Appearance or G-28 form, and it is the employer with whom the attorney represents. This simple approach may not resolve the attorney's fiduciary duty of loyalty to the foreign employee.

• "Golden Mean” approach to representation, a middle ground, as way to limit representation to one party in immigration cases, as well as to limit the disclosure of confidential information. Here the attorney would determine ahead of time the potential conflicts of interest that might arise in pursuit of a non-immigrant employment visa and obtain advance waivers for limited representation. The attorney would advise the employee to seek separate counsel should a conflict arise.

Dual Representation: Ethical Considerations

• Texas Rule of Disciplinary Procedure 1.09 (a) there is a reasonable probability that representation of the current client's would involve a violation of the client’s confidentiality or (b) whether the current case and the former case are "substantially related matters". The comments to the Rule provides the following guidance as to what constitutes a substantially related matter: "Although that term is not defined in the Rule, it primarily involves situations where a lawyer could have acquired confidential information concerning a prior client that could be used either to that prior client's disadvantage or for the advantage of then lawyer's current client or some other person. It thus largely overlaps the prohibition contained in paragraph (a)(2) of this Rule regarding dual representation.

Helpful Sources

• Immigration & Nationality Act: INA § 274A

• Unlawful Employment of Aliens and I-9 Employment Verification System: 8 U.S.C. § 1324a.

• Unfair Immigration-Related Employment Practices: 8 U.S.C. § 1324b

• Penalties for Document Fraud: 8 U.S.C. § 1324c

• Bringing in and harboring certain aliens: 8 U.S.C. § 1324

• AILA’s Guide to Worksite Enforcement and Corporate Compliance, 2008

• M-247 Handbook for Employers: Guidance for Completing Form I-9: http://www.uscis.gov/sites/default/files/files/form/m-274.pdf

• USCIS I-9 Central: http://www.uscis.gov/i-9-central

• Allott, Ann, Daniel M. Kowalski, and Edward F. Frazier. Immigration Enforcement: I-9 Compliance Handbook. New Providence, NJ: LexisNexis, 2011. Print.

Questions?