“Man Forfeits ’09 Harley For Failing To Fill Out I-9s, news at 11 . . . ”

[Editor’s Note: today’s blog is courtesy of Dawn Lurie and Kevin Lashus of Greenberg Traurig]

Yesterday afternoon, the owner of two Baltimore area restaurants was sentenced to four months in prison and an additional four months of home detention with electronic monitoring, followed by two additional years of supervised release, for harboring twenty-four unauthorized foreign-national workers.  Earth-shattering news? Maybe not.

What is news is the application of the very punitive seizure and forfeiture authority granted to the Immigration and Customs Enforcement agents at the initiation of and the conclusion of the administrative/criminal proceeding.  Those interested in a thorough discussion on the topic might consider listening to the August American Immigration Lawyer’s podcast Kevin spoke on with Jody Goodwin and Jan Joseph Bejar. “AILA InfoNet Doc. No. 10081064 (posted Aug. 10, 2010)”

The owner’s hog (his motorcycle), over $378k from five bank accounts; and nearly $100k in cash was seized from the restaurants and the owner’s residence on the day of the immigration raid—meaning those assets were not available to him to apply as professional fees in his defense.  At the conclusion of the criminal proceedings yesterday, the owner forfeited an additional $250k as proceeds of the crime.

Section 274.1 of chapter 8 of the Code of Federal Regulations provides Immigration and Customs Enforcement agents the same authority previously granted to Customs and Border Protection agents to seize items suspected of having been acquired as proceeds of a criminal undertaking.  The seizure is authorized pre-adjudication; meaning, that if there is enough evidence to support the seizure, the assets may be held in escrow during the pendency of the administrative or criminal investigation. ICE is indiscriminative when it comes to applying its authority and can select executives at large companies as well as small business owners.

So, rather than simply dwell on the compliance failure associated with the ultimate outcome of the case, we offer that employers should consider additional issues like business continuity and the down-stream financial effects of an immigration investigation.  The smarter companies have already prepared for an investigation by  initiating a compliance clean-up, conducting internal audits, and retaining a top notch team with a track record to handle the legal defense and to provide re-active counsel.  However, few companies have alternative plans in place for business continuity and pro-active representation in the worst case scenario identified here:  ICE officials utilizing additional tools in their disposal to seize assets that might be otherwise utilized to finance the defense against allegations of administrative or criminal violations.

Now is the time to consider contingencies. And for those companies that have not performed any proactive compliance planning-now is the time to consider the cost of not doing so.