July 01, 2019

The ICEman Cometh

Paul Allen

Whether the title conjures Eugene O’Neill’s play or the famed finger roll of NBA legend George Gervin, keep your fingers crossed not to have either memory replaced by the new “ICEman” – Immigration and Customs Enforcement. In the current environment, we have all heard tales of ICE “raids” at construction sites, meat packing plants and staffing agencies. In fact, just recently a “raid” at a poultry processor in Mississippi on the first day of school resulted in 680 undocumented immigrants being detained and substantial press coverage. The technical term for such “raids” is judicial warrant enforcement action and they often stem from something as simple as an audit of how an employer complies with their obligations regarding their Form I-9s.

Higher Frequency of Raids

If you think you are hearing about such raids with greater frequency, you are right. There were 300-750% increases in FY18 relating to worksite investigations, Form I-9 audits, criminal arrests and administrative arrests. The “raids” are being coordinated with local law enforcement and often have a media and social media component integrated into the process to make the biggest splash. This often includes helicopters, blue windbreakers with yellow lettering on the back and black SUVs with the windows darkened.

What Is a Construction Lawyer To Do?

What can attorneys do about this trend? A good start includes making sure clients are taking the necessary care with respect to completing and maintaining Form I-9s. In 2018, Acting Executive Associate Director for ICE’s Homeland Security Investigations (“HSI”) stated, “Employers need to understand that the integrity of their employment records is just as important to the federal government as the integrity of their tax files and banking records. All industries, regardless of size, location and type are expected to comply with the law.” Of course, that may be easier said than done. For such a basic form, there are myriad ways a Form I-9 can be completed, processed or retained incorrectly. Each of those presents an opening for ICE to leverage an investigation of that employer.

“Non-traditional” Employees

What about business models that don’t focus on a traditional employer / employee relationship? If they are not your employees, are you in the clear? Not exactly. Some of the favorite allegations include “harboring, encouraging or inducing” a violation of the immigration laws. Talk about being placed between a rock and a hard place.

Ready for a Raid?

Preparing for a “raid” is important although you hope to never use those preparations. As a general rule, employers should designate staff members to interact with law enforcement officials that may show up at a place of employment or a work location. Make sure these people know who to contact and how to respond. Public spaces are fair game, but private areas of your office or job site require permission from the employer or a judicial warrant.

“No Match Letters”

Another area of concern which has returned recently are “no match letters” coming from the Social Security Administration. In March of 2019, the SSA announced that it would begin mailing notifications to employers where name and social security number did not match SSA records. Many of these notifications are as simple as an employee who got married or divorced and changed their name. However, if an employer or employee fails to respond to the “no match letter,” this is an easy place to trigger an investigation.

Remember “E-Verify”?

Finally, maybe you recall something called “E-Verify” and wonder why that didn’t solve all of these problems. E-Verify is the federal web-based system allowing enrolled employers to confirm the eligibility of their employees to work in the United States based upon the presented documentation. However, the employer must still complete Form I-9s for each employee, even if E-verify is utilized. More importantly, while there are arguments for E-Verify, and some instances where its use is required, there are important potential down sides:  signing up allows your data to be audited; it does not serve as a “safe harbor” to Form I-9 audits or fines; and it is susceptible to down times – particularly when the U.S. government is shut down.

Learn More with Webinar

Obviously, the above is just the tip of the ICEberg (pun intended). If you want to learn more about this subject, the ABA conducted a webinar moderated by Robert Reusch, a leader in the Forum on Construction Law and Chair of the Construction Law Group at Verrill Dana. I was fortunate to be flanked by two experts in the field, Michael Neifach and Amy Peck from Jackson Lewis where they are Co-Leaders of the Immigration Practice Group. Michael was previously General Counsel at ICE and Amy is one of 21 Directors elected to serve on the 14,000-member American Immigration Lawyers Association Board of Governors and also serves on the Board of Trustees of the American Immigration Council. They are a fountain of information on this subject and were a pleasure to work with. The replay of the webinar is available https://www.americanbar.org/events-cle/ecd/ondemand/364918149/ and is approved for 1.5 hrs. CLE credit. 

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Paul Allen

Fischer Homes, Erlanger, KY, Division 11 (In-House Counsel)