Yesterday, US Immigration and Customs Enforcement, or ICE, raided several poultry and food processing plants in Mississippi, rounding up nearly 700 workers for immigration violations. The early morning raid of the Koch Foods plant in Morton, MS was the culmination of months of planning by ICE, targeting the employer for its alleged use of undocumented workers. Three buses carted the workers to a nearby military hangar in the single largest US immigration raid in a decade. The raid has implications for both undocumented workers and management officials who might be responsible for alleged immigration violations as US immigration compliance laws can result in personal, criminal liability for managers who knowingly hire unauthorized workers.
The Trump Administration has been candid about making immigration enforcement a priority. The Administration has authorized the hiring of more than 10,000 additional ICE agents and has promised to quadruple the number of workplace raids.
This is a serious wake up call for US employers who may have grown lax during the Obama administration in their immigration compliance programs. We are now in a clear no tolerance era with an energized and well-funded ICE agency eager to carry out the Administration's immigration compliance objectives. Employers should expect ICE to continue to increase its work site enforcement efforts. This is a call to action for employers to make a risk assessment of their exposure to both civil fines and potential criminal liability for immigration compliance violations.
What types of work site enforcement should employers expect from ICE? Workplace enforcement falls into two general categories: 1) overt work site raids to detain and arrest undocumented immigrants and 2) the I-9 audit also known as the "silent raid."
Overt work site raids are becoming more common-place. The disruption of the raids for employers can be significant. ICE raids can temporarily shut down operations as employees are arrested. Many times these raids result in civil and criminal charges for employers who either knew the employees were undocumented or who did not take the necessary steps to verify the employee's documented status. The ICE raids today were meant to send a message – cutting corners on immigration compliance can threaten a company's existence and can put managers and executives responsible for hiring undocumented workers in personal, legal jeopardy.
ICE has also increased the I-9 audit "silent raids." The I-9 Form is used by employers to verify the eligibility of employees to work in the US. I-9 audits have been in place for years. Now, however, ICE has increased the frequency of those audits, and has been increasingly unwilling to provide any relief in the per person fines levied against employers, even for clerical mistakes. Simply put, getting this process wrong can have a dramatic impact on the bottom line, and ICE is showing no sympathy for employers' failure to properly carry out this requirement.
Now is the time for employers to establish a well-thought out compliance program that shows they take their compliance obligations seriously. A robust compliance program should have the following features:
- External I-9 audits by an independent party.
- A formal, written compliance program
- Clearly defined hierarchy of supervision, responsibility and accountability for making compliance-related decisions;
- Detailed descriptions of the roles of the various individuals involved in compliance decisions;
- Procedures to verify employees' documentation;
- Established time frames for completion of specific actions, such as when the I-9 must be completed and by whom;
- Direction as to when managerial involvement is required and when inside/outside counsel is appropriate;
- Summary of state and federal immigration laws, including document retention requirements, maintenance of lawful immigration status provisions, and summary of penalties;
- Clear hiring/firing policies and procedures, and compliance with citizenship/national origin anti-discrimination statutes;
- Plan of action for handling and responding to government activity such as ICE audits and raids.
- Annual Training for employees and management.
- Re-verification of employee's status to insure that their authorization has not expired.
- Enrollment and use of ICE's E-Verify system in conjunction with this compliance program, particularly in those state jurisdictions where E-Verify has become mandatory for many employers.
Turning a blind eye in the current climate to immigration compliance requirements creates a significant, yet unnecessary risk. Through proper planning employers can eliminate the worry about the consequences of a government audit.
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