Immigration regulations get more stringent for employers

January 4, 2009
| By Pete Daly |
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An immigration law expert said employers need to be aware of a new version coming of the I-9 employment eligibility verification form required by the federal government.

Susan Im of McShane & Bowie in Grand Rapids also said the government is getting tougher on employers in its worksite enforcement of immigration laws.

The new I-9 coming out in 2009 "is limiting the type of documents people can present to show identity and employment eligibility," Im said.

Furthermore, she describes the I-9 form in general as "a deceptively simple one-page form that can be a trap for the unwary." Even when there is no intent to skirt immigration laws, an employer could be faced with a problem if federal officials determine an I-9 form has incorrect information "because there was a name glitch or a typo, or somebody got married."

Paperwork violations are normally small civil fines, she said, but when individuals are found working illegally in the U.S., those employers can be fined up to $16,000 per unauthorized worker — and U.S. Immigration and Customs Enforcement (ICE) is now likely to bring criminal charges against employers in some cases.

Im said worksite enforcement by ICE agents has "been big in the last couple of years," noting that ICE hired an additional 171 agents recently.

According to the U.S. Immigration and Customs Enforcement website, ICE "returned a total of 349,041 illegal aliens to their native countries" in fiscal year 2008, which ended Sept. 30. That was 20 percent more than the 288,663 illegal aliens removed by ICE in FY 2007.

ICE agents have been "going after criminal charges and they are hitting managers and owners of companies," said Im.

ICE was established in 2003 as the largest investigative arm of the Department of Homeland Security, according to its web site.

Im will be leading a workshop the morning of Jan. 15 at McShane & Bowie on the latest developments in the I-9 process and worksite enforcement. There is a $175 fee for attending.

Im said she worked two years ago with a West Michigan construction company that had been raided by ICE agents, who removed much of the company's employment records, including all their I-9 files. The company, which had less than 30 employees, did have their I-9s "fairly in order," said Im, and she said it was clear the company did not intend to misrepresent any information provided to the government. The government eventually dropped the matter without bringing any charges but "it took over a year," said Im.

Im said worksite enforcement of immigration laws "really kicked off" a few years ago when ICE went after Wal-Mart Stores Inc. for using cleaning contractors who hired laborers who were not eligible for employment in the United States.

Wal-Mart escaped criminal charges but agreed in 2005 to pay $11 million to settle a civil suit filed by the government. In addition, about a dozen contractors who had employed the illegal immigrants who cleaned the Wal-Mart stores around the country pleaded guilty to criminal immigration law charges and were fined $4 million.

Since then, a major case tried in the United States District Court in Grand Rapids ended with three top executives of a Florida-based company sentenced to prison in March, 2008. The case was tried here because Rosenbaum-Cunningham International (RCI) had illegal aliens working at the Grand Traverse Resort and Spa in Acme, although it also had many other worksites throughout the United States.

RCI operated as a cleaning and grounds maintenance company, serving hospitality businesses such as hotels, resorts and restaurants, even including Planet Hollywood and Hard Rock Café. According to a federal press release, RCI had a "nationwide janitorial service that was staffed almost exclusively with illegal aliens." Between 2001 and 2005 alone, according to the government, RCI was paid more than $54 million by customers but did not pay federal income, Social Security and Medicare, and federal employment taxes on the wages it paid to its workforce — thus evading payment of more than $15,675,000 in employment taxes.

The founders of Rosenbaum-Cunningham International (RCI) pled guilty in October 2007 to charges of conspiring to defraud the United States and harboring illegal aliens, and were ordered to serve prison terms ranging from two to ten years. They were also fined a total of almost $50 million.

In December, ICE officials announced that IFCO Systems of Houston had agreed to pay a record $20.7 million to settle government claims related to employment of illegal aliens. IFCO is the largest pallet management services company in the U.S. and has plants in 26 states. The government began its investigation after getting a tip in 2005 that suspected illegal alien workers at a plant in New York were seen ripping up their W-2 forms.

To date, nine IFCO managers and employees have also entered guilty pleas to criminal charges.

In May, 2008, ICE agents raided Agriprocessors, Inc., in Postville, Iowa, arresting 389 illegal aliens, the most ever arrested at a single-site worksite. Ultimately, 305 of the arrested were convicted of identity theft, false use of a Social Security number, illegal re-entry into the United States and other crimes. Two Agriprocessors supervisors were later arrested and charged with crimes, including aiding and abetting aggravated identity theft and encouraging aliens to reside illegally in the United States. One of them pleaded guilty in August.

Khaalid Walls, a spokesperson at the ICE office in Detroit, said there are "ongoing investigations in the western Michigan area," but he would not elaborate on those investigations.

"It should definitely be noted that we aggressively pursue employers that do knowingly hire illegal aliens," said Walls.

Some of the rules employers are under, in regard to immigration laws and the hiring of new employees, are very complicated. Im noted, for example, that "employers must keep the I-9 for all current employees and for terminated employees, and must maintain them for three years after the date of hire, or one year after the date of termination, whichever date is later."

Im said stepped up enforcement of immigration laws at the worksites is "hitting home right here and they are continually investigating West Michigan employers," whether it is food service or food processing, agriculture, construction, or manufacturing in general.

At the same time, Im said employers have to be careful if they try to avoid hiring people who they think may not be in the U.S. legally.

"You could cross the line and be accused of a discriminatory employment practice," she said. "It's a fine line."

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