Alex Halow, Mediator and Immigration Attorney

Trends in I-9 Enforcement:

U.S. Immigration and Customs Enforcement ("ICE") is becoming increasingly aggressive in enforcing I-9 rules and regulations. Recently, ICE released a series of press releases touting its efforts:

• "ICE Arrests 43 at Waipahu, Hawaii Apartment Complex" On July 21, 2008, ICE announced that it executed nine federal search warrants and arrested 43 foreign nationals in a raid on a Waipahu apartment complex. The men were employed by The Farms, an agricultural business.



• "ICE Arrests 58 Casa Fiesta Restaurant Employees in Ohio" On July 23, 2008, ICE arrested 58 employees at eight Casa Fiesta Restaurants throughout northern Ohio.



• "Executives of McDonald's Franchisee Plead Guilty to Immigration Offenses" On July 16, 2008, ICE announced that a former and current top executive for a McDonald's franchisee in Nevada pled guilty to federal felony immigration offenses for encouraging undocumented foreign nationals to reside in the United States.

These are just a fraction of ICE's recent raids and other enforcement efforts.

A reivew of headlines over the past few years also shows a trend of increasingly aggressive enforcement:

• "Wal-Mart Settles Illegal Immigrant Case for $11 Million" (Source: FoxNews.com, article posted March 2005). Wal-Mart was held liable for violations by its subcontractors, not for direct violations by the company itself. The main implication of this case, that companies can be held responsible for immigration violations by their subcontractors, appears to be leading many large national companies to start implementing "subcontractor workforce verification programs", where subcontractors are required to verify the immigration status of their workforce if they wish to work with the large national company. This appears to reflect a strategy by ICE to encourage "self-policing" by U.S. employers, and means that many cases brought by ICE are likely to have far-reaching implications for all employers.



• "Companies using illegal workers to be targeted - Immigration arrests 9 IFCO bosses along with 1,000 workers" (Source: CNN On-Line, article posted April 2006). IFCO is an international company that builds pallets. This case marked the start of what has become a growing trend in immigration enforcement: instead of just bringing civil fines, ICE is working with other local and federal law enforcement bodies to bring criminal charges against the executives of companies that employ illegal workers.



• "Feds Raid 6 Swift and Company Meatpacking Plants in Apparent Illegal Immigration Search" (Source: FoxNews.com, article posted in December 2006). Swift and Company faced substantial disruptions to its business due to the detention of roughly 1,200 of its employees in December 2006. This case may be an example, however, of both the benefits and limitations of immigration compliance procedures. The government maintains that the apprehended employees used fake identification and employment verification documents during Swift's I-9 compliance process. Because Swift made good faith efforts to comply with immigration laws, and participated in the "Basic Pilot Program" (now known as the E-Verify Program), no civil fines or criminal charges were leveled at Swift even though they were unknowingly employing a large number of unauthorized workers.
  
  
• "Border Fence Firm Snared for Hiring Illegal Workers" (Source: NPR, All Things Considered, December 2006). Golden State Fence faces $5 million in fines, and two company executives face possible jail time. The ironic part of this case is that Golden State Fence allegedly used illegal workers to build part of a border fence between the U.S. and Mexico. (In an update to this story, the company agreed to pay $5 million in fines and the two company executives involved pled guilty to felonies and hundreds of thousands of dollars in fines.)



• "Cleaning company executives accused of employing illegal workers" (Source: USAToday.com, article posted February 2007). The chief executives of RCI International are facing criminal indictments after 195 company employees were detained for immigration violations. (In an update to this story, in March 2008, three executives of RCI were sentenced to between two to ten years each for their role in RCI's immigration and tax fraud scheme.)

There is no reason to think this trend towards increased enforcement activity will change in the future.

Trends in State-Based Immigration Laws:

Because the federal government has failed to act on immigration reform over the past several years, another trend has been for state governments to step in to fill the void. Because the power to regulate immigration is reserved to the federal government under the U.S. constitution, there may be some question about the constitutionality of some or all of these laws. However, as a practical matter, employers need to be aware of them and will want to comply with them. One example is Georgia SB 529, the Georgia Security and Immigration Act, signed into law in April 2006, which among other things mandates that public employers and their subcontractors participate in the E-Verify verification program. Those requirements will phase in for large public employers and subcontractors doing business with the State of Georgia (500+ employees) in July 2007, and will be in effect for all public employers and subcontractors by July 2009.

The information on this web site regarding mediation, immigration compliance, family-based immigration, or any other legal matter is general, and cannot be substituted for legal advice.