I-9s, Indictments, and ICE Workplace Enforcement Posted Jun 05, 2009 ©MurthyDotCom Many MurthyDotCom and MurthyBulletin readers have contacted our firm, concerned that the U.S. Department of Labor (DOL) and Immigration and Customs Enforcement (ICE) is targeting more employers over workplace enforcement. The DOL focuses on the H1B LCA requirement, while ICE is the government agency that audits Form I-9s and imposes penalties on noncompliant employers. ICE also has been involved in some high-profile criminal investigations and prosecutions of certain employers of H1B and green card-sponsored workers. ©MurthyDotCom Background and Recent ICE Teleconference ©MurthyDotCom A recent series of immigration law articles, related to matters of compliance, is available on MurthyDotCom. Also, participating in a May 28, 2009 forum, sponsored by the Washington D.C. Chapter of the American Immigration Lawyers Association (AILA), was a panel consisting of: Julie Myers, former Assistant Secretary of Homeland Security for ICE; Brett Dryer, current Worksite Unit Chief, ICE; and Kevin Sibley, current ICE Special Agent, Washington D.C. SAC Office. This teleconference was attended by several attorneys from the Murthy Law Firm. ©MurthyDotCom History and Role of ICE ©MurthyDotCom The members of this forum discussed the history of workplace enforcement by ICE, which has dramatically increased since 2005. ICE has twenty-six field offices around the United States, each headed by a special agent in charge. ICE operations are split into criminal enforcement and administrative enforcement sections. ©MurthyDotCom ICE Criminal Enforcement teams now focus much of their time investigating employers. In prior years they often conducted large raids at factories or worksites and detained unauthorized workers. ICE is responsible for the enforcement of the I-9 program and has recently hired groups of forensic auditors to help in investigations of employer I-9 files. A detailed description of the I-9 provisions and the role of the ICE in enforcing them is included in our September 16, 2008 article, Form I-9 Compliance and Working with ICE, available on MurthyDotCom. ©MurthyDotCom ICE to Work Closely with U.S. Attorney's Office to Bring Criminal Indictments ©MurthyDotCom The members of the forum discussed a recent meeting between ICE leadership and U.S. Department of Homeland Security Secretary Janet Napolitano. The result of this meeting is a plan for ICE to work more closely with local U.S. Attorneys' Offices when investigating employers. ICE had previously taken a less aggressive stance in its investigations, often using site visits, letters, and administrative subpoenas to obtain records and I-9s from employers. ©MurthyDotCom The new strategy is to combine ICE agent investigations with local federal prosecutors to obtain judicial subpoenas and to bring criminal charges, sometimes called grand jury indictments, against the owners and managers of companies. Many such cases involve instances of alleged fraud in the H1B and/or labor certification process for employment-based green card cases. Other situations may result from improper or nonexistent I-9 practices or the employment of unauthorized workers. ©MurthyDotCom Arrests and Indictments on the Rise ©MurthyDotCom As reported to MurthyDotCom and MurthyBulletin readers in our October 3, 2008 article, Company's Officials Plead Guilty to Immigration Violations, the use of federal grand jury indictments for alleged immigration law violations is on the rise. Immigration lawyers report incidents of USCIS and ICE officers questioning H1B and EAD employees, in an effort to gain evidence or testimony against these workers' employers. An example is the recent, highly-publicized indictment and arrest of eleven individuals involved in IT consulting companies in Iowa, California, Massachusetts, Texas, Pennsylvania, Kentucky, and New Jersey. That investigation involved the coordinated efforts of ICE, the U.S. Attorney for the Southern District of Iowa, and was reported in our February 27, 2009 article, Arrests of H1B Employers Increase. ©MurthyDotCom ICE Coordination with USCIS Service Centers to Examine Fraud ©MurthyDotCom The members of the forum also discussed ICE's implementation of new methods, which include closer cooperation with USCIS service centers. ICE has installed special investigative units in each of the four USCIS service centers to examine evidence of fraud in USCIS filings and responses to requests for evidence (RFEs). These ICE officers will determine what instances of fraud are serious enough to be referred to ICE headquarters and the appropriate U.S. Attorney for potential criminal prosecution. USCIS-identified trends relating to fraud and H1B program violations were discussed in our October 24, 2008 MurthyBulletin article, H1B Benefit Fraud & Compliance Assessment Signals Changes, also available on MurthyDotCom. ©MurthyDotCom A common example of fraud would be an employer mentioning an in-house project when, in fact, there is no in-house project at the employer's headquarters and the H1B employee has been working at a client site from the beginning. Since immigration documents are signed under penalty of perjury, it is considered a federal criminal offense to intentionally misrepresent to the government for an immigration benefit. ©MurthyDotCom ICE Scrutiny on Companies using Consultants or Independent Contractors ©MurthyDotCom ICE is also using local trends to speed investigations nationally. One example offered by the current ICE leaders on the panel was the increasing scrutiny directed at IT consulting companies and labor leasing or labor contracting companies. ICE believes that many companies are avoiding the need to verify the identity and employment authorization of workers by contracting with outside vendors to accomplish the same work that previously was done in-house. In these situations, ICE may investigate the company receiving the benefits of the contracted worker (or the end-client), the preferred vendor, mid-vendor, and the company that actually employs a particular consultant. ©MurthyDotCom Conclusion ©MurthyDotCom This important overview and update of the ICE strategy and its enforcement programs should prove beneficial to employers as well as employees. ICE issued a warning that any such investigation must be taken seriously. The involvement of ICE often means that there is a belief that fraud is occurring. We at the Murthy Law Firm encourage businesses to undertake thorough I-9 compliance for all of their employees, and with matters relating to H1B and other foreign workers. A comprehensive list of articles on compliance with immigration law, in its many forms, can be found on our Compliance Page on MurthyDotCom. Our attorneys can efficiently and effectively help employers in this important area with the strong team and systems the Murthy Law Firm has in place. Contact law@murthy.com for more information or to engage our services. Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved
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