Lessons Learned From Evaluating ICE Enforcement Actions

Agents of the U.S Immigration and Customs Enforcement (ICE) conducted more worksite raids in 2007 and 2008 than in any other two-year period since the passage of the Immigration Reform and Control Act (IRCA) in 1986. This resulted in more search warrants being executed on employers, more suspected illegal alien workers being arrested, and more business owners and managers being charged with criminal wrongdoing for immigration matters than ever before.

The arrests, prosecutions and execution of search warrants involved hundreds of employers across the country. Many industries were heavily targeted by ICE, including construction, meatpacking, restaurants, manufacturing, agriculture, staffing agencies and janitorial services.

Most business owners are aware that the government has been increasing their efforts in the area of worksite immigration compliance, but most employers are not familiar with how ICE conducts its investigations. A review of ICE actions from the past two years reveals the following ICE investigative tools and practices:

• Use of Informants. ICE frequently secured the cooperation of job applicants and workers to gain access to companies' human resources departments and plant floors. Informants can turn valuable intelligence over to government investigators if company personnel are cutting corners or are otherwise complicit in violating workplace immigration laws.
• Use of Recording Devices. ICE agents and their paid informants have frequently used recording devices to help advance investigations and aid in the prosecution of company owners, managers or human resources personnel.
• Use of Surveillance. ICE has been known to conduct lengthy "stakeouts" outside company parking lots or in neighborhoods where suspected illegal alien workers live. They will watch the traffic, make note of license registrations, and gather evidence that confirms associations which may support charges against employers for unlawfully harboring or employing illegal aliens, transporting illegal aliens, or aiding and abetting others involved in same.
• Investigating Hiring Process. ICE investigators increasingly look beyond the place of employment and evaluate employers' broader worker recruitment activities to assess possible liability. This may include investigating whether the employer has chosen to go through staffing or "temp" agencies in an attempt to shield itself from I-9 responsibilities. ICE will also look at how suspected illegal workers were "sourced," where they secured their identity documents, and how they were directed to the company. Testimony from the arrested workers themselves can sometimes be sufficient to implicate employers if the evidence indicates that the employer had reason to know the recruited workers lacked proper authorization to work.
• Focus on Hiring Managers and Supervisors. ICE uncovered several schemes in the last two years in different industries where plant managers or supervisors were securing bribes from intending workers. This type of exploitation is most prevalent in job markets that have a heavy saturation of illegal alien workers. Such schemes may also involve payments to secure identity documents used in the I-9 process.
• Focus on "Harboring" Charges. The business owners, managers and human resources personnel that are being prosecuted criminally in federal court for immigration law violations are most commonly charged with "harboring" illegal alien workers. This charge can encompass knowingly employing just one or more illegal aliens, and brings a possible jail term of up to five years along with the possibility of heavy fines. Employers that are also involved in providing housing and transportation, and those involved with sourcing workers, are most at risk of a harboring charge due to the level of their knowledge and involvement in the full circle of the workers' lives.
• Focus on Former HR Employees and Translators. When auditing I-9s or otherwise investigating a company, ICE agents increasingly try to identify, locate and interview past human resources personnel and translators who helped workers fill out I-9s. This kind of testimony has been used successfully by ICE in several jurisdictions to help further focus their search warrants, investigations or raids on particular company practices and employees.

There had been a widely held view in many industries that having a complete I-9 on file for all employees was, by itself, a fairly airtight way to avoid corporate liability in the area of immigration compliance. Although that may have been true at one point, it certainly hasn't proven to be true for many companies in the past few years as the government's worksite enforcement efforts have increased. The investigation tactics employed by ICE have often been able to push beyond the surface facts reflected on the I-9s to show a pattern and practice of company involvement, complicity or knowledge that opens other avenues to more serious legal risk—for both the company and its managers.

Knowing this, proactive employers can take steps to negate liability. Human resources personnel, area managers and front line supervisors should, for example, all be familiar with the company's written immigration compliance policy. That policy should provide a clear line of accountability and methods to escalate reports or suspicions of immigration law violations. They should also be educated on the type of investigative practices used by ICE so they are cautioned against engaging in any discussions or practices that could be viewed as compromising to the company's interests.