No More “Mr. Nice Guy” in Immigration Enforcement

December 2007Newsletters Legally Speaking

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A friend, on his 50th birthday, announced that “If I’m going to accomplish my goals, then no more Mr. Nice- Guy.” He indeed changed the way he did business – and truly no longer was Mr. Nice-Guy – but in the end, he failed dismally to reach his goals.

Last week, I received a call from a weeping client whose loved one had been taken into custody by the United States Immigration and Customs Enforcement (USICE). The husband and wife went to USICE to check on the status of their family-based immigration petition. They were told to wait so that the information official could check on the status of the case. In a few minutes, two USICE officers approached them and took the husband into custody. It was awful.

In another case reported in the New York Times (Nov. 17, 2007), an illegal immigrant was taken to jail to “await deportation. Her nine-month old daughter, Brittany Bejarano, who was born in the United States and is a citizen, was put in the care of social workers.” The article goes on to cite studies that have found that “at least 13,000 American children have seen one or both parents deported in the past two years after round-ups in factories and neighborhoods. The figures are expected to grow. Over all, about 3.1 million American children have at least one parent who is an illegal immigrant, according to a widely accepted estimate by the Pew Hispanic Center in Washington.”

Immigration enforcement has become serious business for employers, employees, and their families. Like my unfortunate and unfulfilled friend, for immigration it is time for “no more Mr. Nice-Guy.”Time will tell if the emphasis on enforcement will succeed or fail. In the meantime, squeaky clean compliance should be among employers’ top priorities.

Increasingly, USICE is emphasizing large scale enforcement actions, which often come as worksite raids. Government officers descend on a business armed with subpoenas for documents and ready to take workers into custody. In a case arising out of a raid in Bedford, Massachusetts, the U.S. Court of Appeals for the First Circuit declined to examine the due process claims of the detained workers. While the court characterized USICE action as “callous,” it was not so shocking as to violate the constitutionally protected due process of the detained workers. (Aguilar v. U.S. Immigration & Customs Enforcement, 1st Cir., No. 07-1819, 11/27/07).

An employer’s best protection against a raid is to have no illegal workers and to have all of the I-9 employment eligibility forms in order. (See Cynthia Yializis’ article in this issue.)

Six-Point Raid Checklist

Even if all the I-9 documentation appears to be spotless, what if the raids come anyway?

To prepare for the eventuality of a raid, use the following six-point checklist:

  • assign and train one or more people to serve as a point person for interfacing with USICE officers
  • employment files should be in one place and in good order
  • call legal counsel immediately upon USICE arrival
  • secure an inventory of the documents sought by the subpoena and taken by the authorities
  • allow only the designated point person to speak with the officers on the company’s behalf
  • document the names of workers who are taken (to the extent possible) and notify the families

There are civil, criminal, and immigration ramifications to a raid. Fox Rothschild partners Robert Goldman and Alka Bahal recently helped a raided business protect the company and its owners from civil fines and criminal indictments arising from alleged violations.

Fortunately, while raids are infrequent, they always are extremely disruptive, and the need to comply cannot be perceived with a “devil may care” attitude. It has been the law since 1986 that all employers must comply with the immigration law with respect to each new hire. This requires employers to fill out and maintain I-9s for each new hire and to refrain from hiring or continuing to employ any person known, actually or constructively, to be working with out authorization.

The I-9’s New Face

The I-9 has a new, simplified appearance. Take a look at the I-9’s new face and become familiar with it. The new form is found at www.uscis.gov/files/form/i-9.pdf. All employers will need to use, complete, reverify, and store this form for all employees.

The new I-9 identifies a new, smaller list of acceptable documents, and it emphasizes the need to refrain from discrimination. List A documents establishing identity and employment authorization have been pared down to: U.S. passport, permanent resident card, unexpired foreign passport with temporary (I-551) permanent residency stamp, unexpired employment authorization document (which has a photograph), and an unexpired foreign passport along with an unexpired I-94. USCIS does give a transition period of 30 days from the publication of the new I-9. Since most people didn’t read the November 26, 2007 Federal Register, employers should begin to make the transition now.

Three details of the new I-9 include:

  • the Spanish version is only to assist employees and may only be used in Puerto Rico
  • re-verification must be done on the new form
  • the employee is not obligated to provide his/her Social Security number unless the employer participates in E-Verify

Social Security Mismatch Letters

A preliminary injunction has been issued restraining the implementation of the program that would require employers receiving notice from Social Security to act to have the employee verify his or her number. The program provided a safe harbor for employees timely following its steps. The government has vowed to try again with another program. Injunction or no injunction, employers receiving such a letter must treat it seriously. Employers should establish an immigration compliance plan to guide their reaction to no match and other immigration compliance matters. Without discrimination, and after the employer has determined whether the error was the employee’s or not, companies should confront (but not discharge) the individual, and seek to have the mismatch corrected. If employers cannot correct the mismatch in a reasonable period of time (no longer than 90 days), the employer should consult with counsel since the employee will need to be discharged if not employment eligible.