Employment Law

On Thin ICE? Must Be Time for an Immigration Enforcement Update!

Winter must be coming, because immigration enforcement has been turning up the heat in recent weeks. What’s new? How about quintupled worksite enforcement efforts, an unprecedented monetary penalty, and a brand-new state law wrinkle in, where else, California?

Immigration

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There’s definitely a bit of a chill in the air, so let’s get out of the cold and right to the point with a quick DO, a DON’T, and an FYI.

Don’t: Don’t Tempt ICE to Beat a Previous Immigration Settlement Record.

In 2013, Infosys set the record for immigration settlements when it forked out $34 million amid charges of systemic visa fraud and abuse of the immigration process. In 2017, that record has been surpassed nearly three-fold.

After a 6-year investigation into an astoundingly egregious example of violation and abuse of immigration law, Asplundh Tree Expert Co. pled guilty to the criminal charge of unlawfully employing undocumented workers. The sentence—a $95 million total criminal forfeiture and civil fine.

Why so serious? According to the investigation, Asplundh not only employed thousands of unauthorized workers, but in many instances midlevel supervisors knowingly rehired workers who had already been discharged by the company due to illegal immigration status.

When Immigration and Customs Enforcement (ICE) began auditing Asplundh’s immigration practices in 2009, unauthorized workers would be dismissed in apparent good faith compliance with the law … only to be rehired, complete with names, identification documents, and Social Security numbers known to be fraudulent by hiring managers.

Meanwhile, top management of the company maintained willful blindness to the unlawful practices, courtesy of a decentralized and haphazard hiring process based on word-of-mouth referrals. According to prosecutors, Asplundh took advantage of these fraudulent practices, and the resulting tractable and inexpensive workforce, dominating the market and edging out competitors through inequitable productivity and profits.

In addition to the monetary judgment, several managers have pled guilty to felony charges, including conspiracy to commit fraud and misuse visas, and those managers await further sentencing. One of these managers reportedly instructed supervisors beneath him that they had “plausible deniability” because the fraudulent Social Security numbers used would check out when entered into the E-Verify database.

In the related press release from ICE, Acting Director Thomas Homan remarked, “Today’s judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable. Violators who manipulate hiring laws are a pull factor for illegal immigration, and we will continue to take action to remove this magnet.”

Do: Do Prepare for Further Increases in Worksite Enforcement Actions.

On the momentum of the Asplundh settlement, during an October 17 keynote address to the conservative Heritage Foundation, Homan stated that ICE was the only law enforcement agency in the U.S. that had been asked not to enforce the laws on the books. This, Homan noted, had sent the message that “it’s okay to violate the laws of the country … and not be worried about enforcement.” “We’ve got to stop sending that message,” he continued.

Homan praised the current administration and the progress ICE has made this year, noting that President Donald Trump’s executive actions and policies have “taken the handcuffs off the law enforcement officers; [ICE] can now enforce the laws on the books.”

“This president, this administration, has finally allowed the ICE officers to do what they’re supposed to do—enforce the laws.”

What does this mean for employers in 2018? When asked, during the Q&A portion of his address, whether we will see a resumption of routine worksite enforcement, Homan responded, unequivocally, “Yes.”

“Unless you remove the magnets, as long as … [undocumented workers] can come here and get a job, they’re going to come,” he continued.

Homan then noted that he had recently reviewed the percentage of time the agency’s investigations unit spent on worksite enforcement, then gave the instruction to increase that by “four to five times what they’re currently doing.”

“We’re taking worksite enforcement very hard this year. We’ve already increased the number of inspections and worksite operations. You’re going to see that significantly increase this next fiscal year.”

Homan concluded, “We’re going to prosecute the employers who normally harbor illegal aliens and we’re going to detain and remove the illegal alien workers.”

BTW, FYI.

Meanwhile, in California …

On October 5, amid a slew of new legislation, Governor Jerry Brown signed AB 450, which imposes new requirements on employers relating to ICE worksite enforcement actions.

Effective January 1, 2018, California’s Immigrant Worker Protection Act (AB 450) prohibits California employers from providing federal immigration authorities with access to nonpublic areas of a worksite without a judicial warrant.

The Act also requires employers to provide notice of Form I-9 and other records inspections to current employees and any collective bargaining representatives within 72 hours.

Finally, effective January 1, 2018, employers are also prohibited from reverifying the employment eligibility of a current employee at a time or in a manner not required by federal law. (Current law prohibits employers from reverifying in a manner that involves an unfair immigration practice.)

Employers that violate these provisions are subject to stiff civil penalties (up to $10,000 per violation).

To be clear, AB 450 still requires employers to comply with federal law and cooperate with ICE enforcement actions. Rather, California employers may not consent to an ICE officer entering the worksite or reviewing documentation without the appropriate subpoena, warrant, or Notice of Inspection.

Just a Brief Moment of Self-Promotion

Certainly, we hope none of our readers would ever find themselves in a situation even remotely similar to Asplundh. Still, to say there’s a lot to digest in immigration compliance at the moment would be an understatement—as we are all-too-aware, even the most ethical and conscientious employers sometimes struggle with the complexities of the I-9 and employment verification process.

That’s why we’re offering a brand-new format for immigration compliance training—a daylong live event hosted by top immigration attorneys. If your organization is in need of comprehensive guidance through these and other recent changes and initiatives in immigration enforcement, this event may be a great fit for you.

For more information, click here.

Additional Resources

HollyHolly K. Jones, JD is a Senior Legal Editor for BLR’s human resources and employment law publications. She understands the existing and emerging needs and challenges of human resources professionals thanks to several years of experience managing, writing, and editing key legal and compliance publications for BLR. Prior to joining BLR, Ms. Jones worked for the Tennessee Legislature’s Office of Legal Services.

She graduated magna cum laude and Phi Beta Kappa with a BA in English Rhetoric and Writing, Political Science, and Psychology from the University of Tennessee in Knoxville, Tennessee, where she also received a 2001 Citation for Extraordinary Academic Achievement. She received her law degree from Vanderbilt University Law School and is licensed to practice law in Tennessee.

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Questions? Comments? Contact Holly at hjones@blr.com for more information on this topic.