If you think that only illegal aliens need to be concerned about Immigration and Customs Enforcement (“ICE”), then as an employer, you have not been paying attention in 2018, when ICE has clearly put businesses in the crosshairs with compliance audits and enforcement raids.
Take, for example, a raid conducted by ICE in small town Tennessee in April 2018. The Southeastern Provision meatpacking plant reportedly employed at least 104 undocumented immigrants at the time of the surprise raid. The company hired most of these without requiring the employees to complete the required I-9 forms and without making them provide documents showing their identities and authorization to work legally in the United States. To make matters more felonious, these workers were paid in cash each week and not reported on the company’s payroll tax reports.
Last month, the owner of that Southeastern Provision meatpacking plant agreed to a plea bargain in federal court on charges of tax evasion, wire fraud and employing undocumented immigrants. The owner has not been sentenced to prison yet, but he has already agreed to pay at least $1,296,183 to the IRS in restitution.
Similar worksite raids have escalated dramatically under the Trump administration and are happening all over the country. On August 28, a trailer manufacturer located near Paris, Texas, faced one of the largest immigration raids in recent history, when 159 of its approximately 500 employees were arrested by ICE. Because that Texas company, Load Trail, was fined $445,000 four years ago for hiring dozens of undocumented workers, one could reasonably expect the employer to also face jail time and restitution requirements for a pattern and practice of breaking the immigration laws.
How do companies get selected for raids? Often an employee is arrested on another charge. While in custody, he gets grilled about his immigration status, how he got his job, whether anyone at the company knew or suspected he was in the country illegally, whether the company assisted him in getting fraudulent employment documents and how many other undocumented employees work there. In exchange for a permit to work legally in the United States, that employee agrees to become a confidential informant.
The raid on Load Trail, the Texas trailer manufacturer, occurred after ICE received information that the company hired undocumented immigrants who used fraudulent identification documents, according to a Homeland Security spokesperson. ICE hasn’t specified whether it was indeed an employee informing on the employer that provided ICE that information, but that would be a reasonable guess.
A company may also get selected for a search after ICE conducts an I-9 audit of the company and finds substantial errors in the I-9 documentation. ICE uses this information to get a search warrant of the workplace from a federal judge that ICE can then execute in an unannounced raid. In addition, ICE can fine you between $200 and $2000 for each violation on an I-9 form that ICE discovers.
At the same time that ICE is dramatically increasing the number of these unanticipated raids, it is also escalating its Form I-9 audits to record levels. As of July, more than 5200 businesses across the country had been served with I-9 inspection notices in 2018 as part of the largest I-9 audit action that ICE has ever undertaken. This increase makes it clear that employers are the targets of ICE enforcement efforts, not just illegal employees.
I know that you are reading this and thinking, “I’m not in trouble because I don’t employ any undocumented workers.” Really? How do you know that? Have you gone back to take a long look at your completed I-9s on your current employees and former employees who worked for you in the last three years? Have you really studied the documents you were given at the time of hiring? Do you know what a valid permanent resident card should look like? Do your new hires often come from friends and family of current employees? Are you in an industry that often attracts undocumented workers—construction, oil field services, feedlots, meatpacking, manufacturing, agriculture, landscaping, hotels, restaurants, retail, mining, personal services (laundry, nails, beauty, car washes, etc.)?
Right now, ICE could have your business under surveillance, noting where all of the exits are so that the premises can be secured when the search warrant is executed. ICE may be making plans to seize your I-9s, your payroll records, any Social Security no-match letters you have received, your banking records showing any cash payments you might be making to off-the-books employees, and other financial records.
They could also be planning to arrest some percentage of your workforce. How is your business going to run if a third of your workforce is taken into custody in one day, like the Texas trailer manufacturer had happen last month?
The best thing you can do right now to protect your company and yourself as a responsible employer is to have an employment attorney or other I-9 expert review the I-9s of your current employees and anyone who has left your employment in the last three years. The audit of those I-9 forms will reveal whether you have problems that can be corrected on the actual forms themselves or whether there is a bigger, more systemic problem in your hiring that could have you facing an unannounced visit one morning by a dozen or so ICE agents bearing a search warrant for your premises.