ICE Waging Aggressive Worksite Enforcement Campaign

 

In recent years U.S. Immigration and Customs Enforcement (ICE) has changed its worksite enforcement strategy against employers that knowingly hire illegal immigrants. While it previously relied on administrative fines and forfeitures to persuade employers to comply with laws prohibiting hiring of unauthorized aliens, ICE is now carrying out high-profile raids and seeking criminal indictments and felony convictions against corporate violators, owners and managers and undocumented workers.

In fiscal year 2007, ICE obtained fines and judgments of more than $30 million against employers while making 863 criminal arrests and 4,077 administrative arrests. In the first nine months of the fiscal year 2008, ICE made 937 criminal arrests at U.S. worksites, 99 involving owners, managers, supervisors or human resources employees who face charges ranging from harboring to knowingly hiring unauthorized aliens. In the same time period, ICE has made more than 3,500 administrative arrests for immigration violations during worksite investigations.

Worksite raids typically come after months of investigation and may result in the arrest of dozens and sometimes hundreds of employees, as well as disruption of operations and potential criminal and civil liability for the company and its management. Notable examples:

· IFCO--In April 2006, ICE raided over 40 plants and the Houston headquarters of IFCO Systems of North America, detaining nearly 1,200 undocumented workers. In 2007, seven IFCO managers pled guilty to unlawful employment of illegal workers and are awaiting sentencing, and in February 2008, a grand jury returned a six-count felony indictment against five current managers of IFCO's Pallet Management Division.

· Spectrum Interiors--In November 2006, ICE arrested 31 undocumented employees of a subcontractor of Spectrum Interiors, a Kentucky drywall contractor. As a result, Spectrum's sole director will spend eight months in a federal prison, and its CFO was sentenced to three years probation and six months of home detention. In addition, the company will pay a $2 million judgment and be on probation for two years.

· Swift & Company--In December 2006, ICE raided six meat processing plants of Swift and Company in the Midwest and arrested 1,297 workers, resulting in the loss of 40% of Swift's work force and temporary suspension of operations at all six plants. In July 2007, ICE arrested 20 more employees, including a union officer and a Swift HR employee, for alien harboring.

· Michael Bianco Inc.--In March 2007 ICE conducted a worksite enforcement operation at this New Bedford, Massachusetts manufacturer's worksite, arresting the owner of the company and three managers on charges of hiring unauthorized aliens, as well as about 320 undocumented workers, representing more than half the company's work force.

· Mack Associates--In September 2007, ICE agents executed federal search warrants at 11 McDonald's restaurants owned by Mack Associates in the Reno area and at the franchisee's corporate office, arresting 58 individuals who were working illegally. The operation resulted in guilty pleas by the corporation and one current and one former franchisee executive and an agreement to pay a $1,000,000 fine, and the executives may be sentenced to jail time.

· Agriprocessors Inc.--In May 2008, ICE conducted a raid at a meat packing plant in Postville, Iowa, resulting in the arrest of 389 undocumented foreign nationals. An investigation is on-going by federal justice and immigration officials and federal and state labor officials into labor and immigration violations by the company.

· Action Rags USA --In June 2008, ICE executed a search warrant of Action Rags USA in Houston and arrested more than 150 aliens, about 85% of the company's work force. The owner and three managers have been charged with conspiracy to hire undocumented aliens, inducing undocumented aliens to come to the U.S., and engaging in a pattern or practice of hiring undocumented aliens.

· Howard Industries, Inc. - On August 25, 2008, ICE executed criminal and civil search warrants at Howard Industries, Inc., an electric transformer manufacturing facility in Laurel, Mississippi, by locking all exits and arresting 595 employees in the largest immigration raid to date at a single work site. Due to the previous threat of congressional inquiries and grass roots pressure, approximately 106 of the 595 employees were temporarily released for humanitarian reasons with electronic monitoring devices. Eight individuals have been charged with aggravated identity theft. Approximately 475 other employees were transferred to a detention facility in Jena, Louisiana, to await deportation, but an ICE spokesman said some of the 475 could face criminal charges as well.

In light of heightened enforcement actions by ICE and its strategy of seeking criminal charges against corporate employers and their management and human resource employees, employers are advised to adopt or review employment eligibility verification (I-9) and other immigration compliance policies, train their employees in carrying them out, and consistently enforce these policies.

Grzeca Law Group has trained lawyers to help corporations through these processes and procedures.

Despite all of the jokes circulating about attorneys, "lawyer's ethics" actually isn't an oxymoron. Attorneys have strict ethical rules that they must follow in order to maintain their law licenses. However, ethical problems can arise in dual representation matters.

Typically, attorneys are discouraged from representing "co-clients" in the same legal matter. This practice, called dual representation, is actually prohibited in some states in divorce cases, for example. However, in employment-based immigration law, dual representation is inevitable. It would be impractical for the company and the foreign national to both obtain separate attorneys when they are working toward a common goal. The attorney, then, represents both parties and develops a lawyer-client relationship with the employer and the foreign national.

Dual representation results in additional concerns for attorneys, particularly in regards to loyalty, confidentiality and conflicts of interest. Lawyers are forbidden from disclosing confidential information about their clients. In a dual representation situation, however, the attorney must disclose information and be equally loyal to both parties. Therefore, the lawyer cannot keep secrets told by one client about another in the dual representation relationship. The lawyer has an equal duty to both clients in a dual representation relationship, regardless of who is responsible for paying the bill.

If a conflict of interest arises between the employer's interests and the foreign employee's interests, the attorney must try to resolve the conflict or else withdraw from representing both parties in the matter. Conflicts are usually seen when either the employer or the foreign national seeks to end the employment. The attorney cannot, for example, hold off on filing a petition because one party has asked for it to be delayed. Because the petition affects the employer's interests and the foreign national's interests, both clients have to consent to the delay.

Grzeca Law Group is recognized by the Bar for its high ethical standards and would be happy to further explain dual representation to our clients.  

Renewing your driver's license while a petition to extend your nonimmigrant status in the U.S. (L-1, H-1B, TN, etc.) is pending with U.S. CIS may prove rather frustrating.

The U.S. Code of Federal Regulations recognizes processing delays for extension Petitions and allows for continuous employment in the U.S. for up to 240 days provided that the extension petition is timely filed.  However, some Motor Vehicle Divisions are unaware of this provision, or simply unwilling to comply with this rule although the foreign nationals remain in the U.S. legally.

However, if biking or walking to work is not an option, it is usually beneficial to visit the local Division of Motor Vehicles (DMV) and present them with an original Receipt Notice evidencing timely filing of the extension Petition and the pertinent excerpt from the Code of Federal Regulations along with the application for a renewal of your driver's license.

To avoid the unnecessary multiple visits to a local DMV, it is important for the employer to be aware of the expiration dates of the driver's licenses issued to its nonimmigrant employees and coordinate the filing of Petitions to extend their nonimmigrant status accordingly.

Please contact our office for further assistance in renewing a driver's license.