Department of Homeland Security’s Immigration & Customs Enforcement (“ICE”) issues a press release announcing another worksite immigration raid. ICE has dramatically changed its enforcement of the immigration laws. Rather than relying on the traditional use of administrative fines for I-9 violations, ICE is bringing criminal charges against employers and seizing their “illegally derived” assets.

Last fiscal year, this new approach resulted in 863 criminal arrests and over 4,000 administrative workplace arrests. As recently as July 21, 2008, two top executives for a McDonald’s franchisee that owns 11 McDonald’s restaurants and the corporation itself pleaded guilty to federal felony immigration offenses, and agreed to pay a fine of $1 million. Also in July 2008, the president of a Cincinnati-area company was sentenced to eight months in prison for harboring illegal aliens “for commercial advantage and private financial gain.” The company was also sentenced to two years’ probation and ordered to pay $2 million in fines.

What triggers a government investigation into your worksite? Governmental investigations often arise in strange and unassuming situations. For instance, a disgruntled former employee or a competitor may relay information to ICE. This might include information or allegations relating to the hiring of undocumented workers, or the actions of recruiters in acknowledging the existence of fraudulent documents. Recent raids have been triggered by Social Security no-match letters, even when employers are enrolled in government programs that check social security numbers and identities. A Wage and Hour audit may result in the Department of Labor contacting ICE to discuss irregularities in a company’s I-9 records.

Fortunately, guidelines exist to help employers avoid both prosecution and severe sanctions. The United States Sentencing Commission’s federal sentencing guidelines for organizations describe a “Culpability Score.” Pursuant to the guidelines, an effective compliance and ethics program is one of the mitigating factors that can reduce an organization’s punishment for criminal immigration violations. Whether a corporation will be indicted will depend on a number of factors listed in the Department of Justice “McNulty” memo, including the existence of a preexisting compliance program, as well as remedial actions such as replacement of responsible management and termination of wrongdoers.

It is nearly impossible (and is not legally required) for an employer to confirm that 100% of its workforce is lawful. Fraudulent documents abound, and careless employers can unknowingly hire workers without appropriate documentation. An immigration compliance program is one of the few ways that employers can exercise some control over their civil and criminal liability in immigration matters. In order to avoid liability for immigration violations, it is critical that employers understand, implement, execute—and document their execution of— internal immigration compliance programs that encourage due diligence at all levels in the organization.

What are the key elements to include in a corporate immigration compliance policy?

  1. The policy language should be clear and understandable, and should plainly state that all employees are to comply with relevant federal, state and local immigration laws, and behave at all times in an ethical manner.
  2. The policy should require that a compliance officer be selected who will be ultimately responsible for ensuring that the company and its employees and agents understand the laws and comply with the policy.
  3. The policy should require regular training programs for all levels of employees— from senior management to receptionists.
  4. A monitoring system should be established to measure compliance with the policy and its effectiveness. Ramifications for violation of the policy should be clearly outlined and applied uniformly.
  5. In consultation with litigation counsel, a procedure should be established for dealing with government visits, audits, investigations and raids. This procedure should be communicated to “front line” employees, including security guards, receptionists, etc.
  6. Ensure that the company provides post-audit and post-raid training for all involved individuals to further protect the company from follow-up actions by the government after a raid or audit occurs.
  7. The company should develop an internal mechanism to address post-hire and initial I-9 completion issues, including instances in which thirdparties (for instance, clients or subcontractors) provide information indicating that an employee is not authorized to work.
  8. The policy should include clear guidelines regarding I-9 compliance. This section of the policy should require regular I-9 training; ensure that I-9 documents are included in the company’s Document Retention Schedule; and schedule regular internal I-9 audits to analyze potential risks and mitigate fines and damages prior to any government action.
  9. The company should ensure that its legal department or outside counsel reviews subcontractor agreements involving provision of temporary labor or services performed on company property. These agreements should include representations and warranties that the subcontractor(s) will comply with all federal, state and local immigration laws. Employers may also desire to include a provision that subcontractors will indemnify the company for any damages and legal fees the company incurs, should they fail to comply with applicable immigration laws.
  10. Establish a decision-making process through which the company determines whether it will sponsor an employee for lawful permanent residence or require the employee to bear immigration-related costs (when legally permitted). The company can avoid the appearance of discrimination or disparate impact by setting up a process that treats employees consistently, regardless of their national origin. Multinational companies should also establish a global immigration plan. Prior to the transfer of employees, it should determine which local immigration laws apply and decide which costs the company will pay.

Clearly, in light of increased enforcement of both civil and criminal immigration laws, employers should ensure that their codes of conduct and immigration compliance policies are capable of providing maximum protection for their organizations.