By way of some background to what is coming down the track right now, consider the following actions taken by the United States Immigration and Customs Enforcement Adminis-tration, a.k.a. ICE (appropriately abbreviated). Julie Myers, Assistant Secretary of Homeland Security, USICE, released a fact sheet reporting the more significant successes of her agency. Among others:
Fresh Del Monte Produce: 10 former workers indicted by a federal grand jury for possession of fraudulent immigration documents or Social Security fraud. Further investigation led to arrests of another 160 persons in this country illegally.
Swift & Company: more than 1,200 illegal aliens were arrested at 6 different processing plants in six different states. Of those arrested, 274 were charged with federal crimes or state criminal offenses. To date, Swift has not been charged but the investigation is still ongoing. This fact sheet contained 15 high profile cases including the two cited here.1
Wal-mart Stores: agreed to pay an $11 million settlement to the government as a penalty for knowingly using the services of undocumented workers hired by independent contractors.2
I wonder whether Swift and Walmart received advice from their legal departments before starting down a path that would only cause major problems? Something to think about, I guess.
After our United States Senate failed to pass any immigration reform, ICE took matters into its own hands and pulled a provision out of the Immigration Reform and Control Act of 1986, (IRCA).3 In effect, it always had the hatchet. Now sharpened, ICE is preparing to swing it. A DHS spokesman is quoted as saying that the agency is tough now and will get tougher still.
Further in the New York Times Article, Republican lawmakers viewed the new rules as way of shutting off the "jobs magnet" in the workplace and restoring the "rule of law."4
Previously, this provision was the law, but the now dismantled INS seldom used it to punish employers that could be held liable for knowingly hiring a foreign national who lacked authorization to work or to continue to allow the employee to work once made aware of the illegal status of that employee. The employer’s liability could be inferred from not only actual knowledge but also "constructive" knowledge. That would include any circumstance where an employer had actual knowledge but also where he received some type of notice of certain facts and circumstances would put a reasonable person on notice of a certain condition.5
There are numerous examples of what could constitute constructive knowledge. I will summarize what appear to be the more notable:
• The employer fails to file a completed USCIS Form I-9;
• The employee submits conflicting documentation during the initial employment verification process;
• The employee submits documentation that look to be either forged or altered;
• Receipt of a Social Security "no-match letter concerning the employee and it is ignored by the employer.
As recently as August 2007, ICE published a new rule that would augment 8 CFR § 274a. and INA §274A(b) by toughening sanctions against employers. Several summaries have been prepared by attorneys and the government to explain this new rule. I will condense it even further as follows:
Three terms are used in the summaries. They are, "no-match letter", "safe harbor" and "constructive knowledge." (See diagram above.)
After an employer mails the W-2 Forms into the IRS, for all employees, the form gets to the Social Security Administration for credit to the employee’s account. The SSA receives literally millions of W-2’s that have a no-match, namely, the Social Security Number and the employee do not match. The I.R.S. then sends out millions of letters to the employers to correct the information or explain the error. A reasonable period would be 30 days for the employer to respond.
The employer must determine from the employee why there is a discrepancy and the employee must provide additional information including photo proof to correct the problem. The employee has up to 90 days to get the correct documentation back to the employer, who has three days to respond to the I.R.S. by submitting a new Form I-9 with new or corrected information along with the photo identification. Now of course, the 30 days is included in the 93 days and there should be no reason why the employee cannot return the required paperwork long before the 90 days; therefore the three days would also be part of the 93. Make sense?
Look at it this way. The employer must get up off of his or her arse and do something within 93 days of the original notice.6 If the employer fails to act or to correct the problem, he must within that 93 days either terminate the employee or face the risk of being deemed to have had constructive knowledge and lose his "safe harbor" protection from fines. Of course, if the employer has actual notice, for example, the employee admits that he is illegal, then the employer must act immediately or be deemed to have actual knowledge and he is right back into fines and possible prosecution by ICE By the way, "safe harbor" is a term generally seen in tax cases but it means the same thing in this context. If the employer makes a reasonable effort to cure an immigration problem, and notifies the ICE that the problem is apparently resolved, the government will not arbitrarily hold him responsible for any mistakes.
Having read (or skimmed) the above, what should a wise and prudent attorney do if he or she receives a telephone call from either an existing client or a possible client sitting in their office, staring at two immigration officers?
• Tell the individual not to panic!
• Make certain that they are who they say are. I for one cannot imagine anyone not from Immigration wanting to impersonate one. But ask for "credentials."
• Ask to see the warrant authorizing the search and read the accompanying affidavit. The client will be given a copy of the Warrant, but not the affidavit.
• This is obviously not a great time for you to be talking to someone on the telephone. Resist the urge to talk with the agents since you probably have little or no information about their visit. If you are the employer’s actual attorney, exchanging some pleasantries with them never hurts. While not graduates of the Dale Carnegie Course on "How to Win Friends and Influence People," they generally are pretty nice and will bend a little if you are cordial.
• Stress that there may be confidential documents in the employment files. There may be a privilege issue. While the officers really do not have to wait for an attorney, being nice to them will not hurt down the road.
• Advise the employer to refuse to voluntarily consent to the search and to sign nothing. The employer is under no obligation to assist the officers in their search.
• Advise the employer to make a detailed inventory of all papers being removed and tell him to photocopy everything being taken.
• While the employer cannot stop the search, nothing prevents an employee from being there every moment and accompanying the agent(s) wherever they roam.
That pretty much covers most of the issues that come up in a legitimate search. There is no conclusion. The reason for this is that immigration law never seems to rest. As proof of this, I read only two days ago that the AFL-CIO and the ACLU have teamed up and filed suit in the United States District Court in San Francisco. They are seeking a permanent restraining order against The Department of Homeland Security DHS and ICE from implementing this new rule and preventing the SSA from mailing out 140,000 no-match letters to employers. A Federal District Court Judge issued a Temporary Restraining Order (TRO) on September 15th and will hear arguments concerning making it a Permanent Order. This is a classic example of the old adage, "pick your battles"! San Francisco is within the jurisdiction of the Ninth Circuit Court of Appeals. This particular Circuit has a passion for bashing Homeland Security on all immigration matters. I wrote this article on September 22, 2007. By the time this article hits the press, the law may change again and again…7
1 U.S. Immigration and Customs Enforcement Fact Sheet, www. ice.gov/pi/news/ factsheets/ worksite-operations.htm last modified August 20, 2007.
2 "Wal-Mart to pay $11 Million in Lawsuit on Illegal Workers’, New York Times, March 19, 2005.
3 Immigration Reform and Control Act of 1986, Public L. No.99-603, 100 Stat. 3359.
4 N.Y. Times, August 8, 2007: "U.S. Set for a Crackdown on Illegal Hiring."
5 8 CFR §274a.1(1)(1). INA§ 274A(b)(6) was later added to make it easier for employers to ask for further information from the worker.
6 8 C.F.R. 274a (b)(2)(B)(ii) requires the employer to maintain Employment Eligibility Verification (Form I-(9). The form is actually maintained by the employer. It becomes vital only if and when ICE drops in for a review of employee records.
7 One additional point needs to be made. I referred to criminal sanctions in this article but concentrated on employer duties under current immigration law and not the consequences for ignoring them. The criminal sanctions would be a source for another article. The appropriate sections of the U.S. Code covering criminality involving fines and or jail for both employers and employees are: 8 U.S.C. 1324(a), 8 U.S.C. 1324(c), 8 U.S.C. 1326, 18 U.S.C.1001, and 18 U.S.C.1546.
Editors’s Note: The law does indeed continue to change... As this article was being edited, a federal court issued a permanent restraining order in San Francisco. Secretary Chertof, Homeland Security, indicated on network television that, notwithstanding the order, ICE was pursuing its crackdown vigorously without the safe-harbor provision So, it now appears, the agency is going ahead with an "attitude." Local chapters of immigration lawyers are preparing for the worst.
Fred DePasquale is a 1973 graduate of Chicago Kent College of Law. He started his legal career as an ASA in Cook County States Attorney’s Office. He prosecuted over 1000 DUIs in traffic court. He then worked Juvenile Court, and White Collar Crimes at the old 26th and California Courthouse in Chicago. From there, he went to work as an ASA in DuPage County and became Chief of Misdemeanor. After leaving DuPage, he tackled a position with the Illinois Attorney General’s Office as a Revenue Litigator and Administrative Appellate Attorney. After that, he became an Administrative Law Judge for the Illinois Department of Revenue. During that time, he was also developing a truck overweight practice that finally required him to travel to every District in Cook County, as well as field courts in DuPage and Kane Counties. He now practices Immigration Law in Sarasota, Florida but also lives in Illinois where he handles other types of cases as well as immigration. He is also a contract attorney for the Illinois Appelatte Prosecutors Office.