ICE Raids and Advising your Corporate - PowerPoint Presentation

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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.Slide2

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 InvestigationsSlide3

Government Agencies Involved in Immigration-Related InspectionsU.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 workersSlide4

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 moneyParticipate in other criminal conductICE 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 programSlide5

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 attentionSlide6

Notice of Inspection (NOI)Administrative inspection compelling the production of Forms I-9Usually 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 complianceSlide7

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 workforceSlide8

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 Slide9

NOI: Response SubmissionCopy 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 DiscrepanciesSlide10

Notice of Technical or Procedural ViolationsList 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 violationsSlide11

Notice of Suspect DocumentsICE 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 Slide12

Notice of DiscrepanciesAdvises 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 ICESlide13

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 appealableSlide14

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…Slide15

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 violationsFactorAggravatingMitigatingNeutralBusiness 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% Slide16

Flow Chart of Adverse Inspection ProcessSlide17

An Ounce of PreventionINA §

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 auditsSlide18

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-auditSlide19

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 systemsSlide20

Compliance Checklist continuedEnsure 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.Slide21

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.Slide22

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

.

.Slide23

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

.

B

e

consistent with all employees and job

applicants regarding documentation requirements.Slide24

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. Slide25

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.Slide26

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 Slide27

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. Slide28

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. Slide29

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.Slide30

Questions?