5 Tell-Tale Signs Your I-9 Non-Compliance Warrants Criminal Defense Counsel
Since 2009, the realm of immigration compliance for employers has been dominated by administrative I-9 audits. With each wave of audits, some may have been lulled into believing that the worst thing that could happen is the loss of undocumented workers and the payment of fines. The complacent may have forgotten that, from 2006 through 2008, the U.S. Immigration and Customs Enforcement’s primary enforcement methods were covert criminal investigations and prosecution of felony harboring of immigrant workers and related charges.
In addition to more recent administrative I-9 audit work, I served as co-counsel on two criminal defense cases from that mini-era. It can be difficult to convey the right amount of healthy paranoia to one’s clients, especially in light of how charming the ICE agents may seem these days, but it is an essential element for immigration compliance counsel to instill.
ICE is still in the criminal enforcement game when it comes to worksites. The titles of ICE’s recentpress releases are telling: Los Angeles manufacturing company and its owner criminally charged in HSI probe targeting hiring violations; Texas firm and field operations supervisor charged with harboring and transporting illegal aliens; and Minnesota man indicted for transporting, harboring illegal aliens. ICE may even be in the process of bypassing I-9 audits and increasing its utilization of covert operations to directly seek asset forfeitures, as recently reported in a case involving hotel owners in the Kansas City area.
Although none of these incidents will gain a fraction of the press the Swift or IFCO raids generated in 2006, each is a reminder that employers and immigration compliance counsel must remain vigilant and more than a bit wary. To that end, an employer may be on ICE’s criminal investigation radar during these tell-tale signs:
1. I’ll Be Back – At the conclusion of some I-9 audits, an employer may be warned that it may be re-inspected in the not too distant future. Employers receiving this warning should get and keep their ‘I-9 religion.’
2. Beware of the Boomerang – During the course of an I-9 audit, an ICE Notice of Suspect Documents will result in the departure of employees with questionable work authorization. Additionally, in the absence of an audit, ICE may remove an employee from the workforce for other reasons, such as the enforcement of a removal order. Both situations are ones in which the employer has knowledge the former employee may lack work authorization. ICE may send this person back to the workplace within a week or so and instruct him or her to seek re-employment. Note, the individual may be wearing a wire or mini-camera to record the incident.
3. Do You Remember When? – Another means for ICE to gather information is for an individual, a current or former employee or possibly a subcontractor, to phone a business owner or senior manager and strike up a conversation along the following lines: “Remember when we were working on project X? Do you remember how I told you that I had immigration problems?” That call is likely being recorded.
4. The Unexpected Applicant – Imagine a video in which an ICE agent dresses in work clothes, and pulls up to your worksite in an older vehicle that has seen its better days. He walks into the workplace seeking a job. At some point he places a driver’s license, Social Security Card, and permanent resident card down on the table. He may simply observe how the I-9 process is handled, but he may state he lacks work authorization. In criminal worksite investigations, this can happen.
5. You’re Asking About What? – Out of the blue, an employee walks into the HR director’s office and strikes up a conversation about a problem with her Social Security Number. An ICE agent drops by the workplace and wants to ask a few questions about the employer’s hiring and pay practices. An employer’s long-time payroll services provider seems terrified and summons up the courage to ask, “What is going on with your organization and the government?” All of these are indications a criminal investigation may be in the works.
A competent immigration compliance attorney is well-equipped to handle items 1 and 2, but what about the balance of these tell-tale signs? There is definitely a role for immigration compliance counsel throughout these cases, but unless that person is also capable and experienced in federal criminal cases, it is time to consult with criminal defense counsel. It is possible that the employer’s matter may remain on the administrative side, but in the event it bleeds into the criminal realm, having a former federal prosecutor or white collar defense expert can be invaluable in arriving at the best possible outcome.
In a perfect world, there would be no need for compliance or criminal defense counsel. That world does not exist. Employers should do their best to comply with the law and, in instances where they fall short, they have the right to retain counsel to get things back on track or make the best of a bad situation. Achieving optimal results requires the right mix of legal counsel and increased diligence at all levels within an organization. ICE has its job to do, and it is a challenging one. Organizations on the other side of ICE investigations have some good examples of ‘rescues’ and ‘turnarounds,’ along with the list of bad examples. The path forward for those following the good examples isn’t an easy one, but it is the preferable course.
Employers and lawyers – Let’s be careful out there.