Tag: immigration and customs enforcement

ICE May Visit Your Company or University Campus – a Quick Checklist and Guidance

Lately, Immigration and Customs Enforcement (ICE) has been more active in making arrests of undocumented individuals. Statistically, however, the number of arrests are very small and the “bark” is much bigger than the “bite”. Nonetheless, it is helpful for employers and other stakeholders to know what the required protocols and duties are if ICE shows up, employee rights, and bystander rights. Below is a quick checklist to help you along with important guidance.

Major Points

  • Immigration is a civil matter, not criminal. The majority of ICE warrants are administrative civil warrants.

  • ICE priorities are arresting those with criminal convictions and those who have been previously ordered removed (absconders). ICE may pursue these activities in public areas.

  • Anybody arrested by ICE has the right to counsel.

  • ICE agents are federal employees that are working as directed. Nonetheless, it is the policy of most employers that ICE enforcement activities focusing on the  personal immigration issues of an individual shall not take place on company property.

  • If an ICE agent does attempt to arrest someone on company property, do not interfere as that will complicate matters. However, please contact your manager and they will coordinate with HR and Legal.

Public versus Private Property

  • Some parts of commercial property would be considered public property (i.e. parking lots shared by multiple employers) .

  • However, back office and areas where customers are not present are considered private property.

Arrest Warrants

  • Warrants come in many varieties.

  • Immigration warrants are civil administrative actions, not criminal.

  • Immigration warrants are signed by ICE Officers, not a Judge.

  • Immigration warrants do not allow ICE to enter private areas without consent.

  • If an ICE agent is seeking entry to a private area, it is the policy of most companies to deny such access. You should ask the ICE agent for a copy of the warrant, their name, and contact your manager.

  • In very rare instances, ICE may invoke “exigent circumstances” and make entry without a warrant.

Your Rights

 Generally speaking if you have a personal encounter with ICE:

  • You should not grant entry to any private areas.

  • You have the right to remain silent.

  • You have the right to ask “Am I free to go?” If they say “yes,” you may walk away.

  • If detained, you have the right to counsel.

  • If you are a foreign national, you have the right to contact your Embassy or Consulate.

  • You do not have to sign any document that you do not understand.

  • If you are stopped for questioning but not arrested, you may refuse a search. But the Officer may pat you down if they suspect you have a weapon.

Non-Immigrants must Carry Evidence of Legal Status

Section 264 (e) of the Immigration and Nationality Act requires every foreign national 18 years of age and over to carry with them and have in their personal possession at all times evidence of their status such as an I-94, work permit, or green card at all times.

ICE and Foreign Students   

  • ICE has jurisdiction over F-1 foreign students and J-1 exchange visitors.

  • ICE will routinely meet with the Designated School Official (DSO) who oversees F-1 and J-1 students on campus.

  • ICE may obtain limited private information about F-1 and J-1 students including their home addresses.

UNIVERSITY AB-21 REQUIREMENTS  

In 2017, the California Legislature passed AB-21 (codified in Education Code Section 66093) requiring Universities to take certain affirmative steps to notify students on at least a quarterly basis of ICE activities on campus. This includes the following:

  1. Quarterly E-Mail Update: E-mail to students, faculty, and all employees advising them about ICE activities and reminding them of their rights and obligations should ICE seek to take enforcement actions on campus against individuals.
  2. The University Intranet should include the following required information for students, faculty, and employees to access:
    • Notify University of ICE Activities:  Encourage those on campus to report an ICE visit.
    • Point of Contact at University for Personal ICE Issues: The University must designate a contact for students, faculty, and staff to contact if they need assistance
    • Emergency Family Contact: Can proactively notify the University in case they need to notify someone that a student, faculty, or staff has been detained by ICE.
    • ICE Detainee Locator: Should you need to find where an individual is being held in ICE custody, you can try the ICE detainee locator here. You will need their 9 digit Alien Registration Number (aka A#) and Country of Birth, or name, country of birth, and date of birth.
    • Legal Assistance: List of organizations that can assist with detention and removal issues.
    • Accommodation for Student Absence due to ICE Matter: Should a current student be unable to attend classes due to an ICE action, the University must take reasonable efforts to accommodate the students, including whenever possible  maintenance of financial aid and a seamless transition back to school.
    • Confidentiality: The University must refrain from disclosing personal immigration information about students, faculty, and staff to the greatest extent possible consistent with state and federal requirements.

GUIDANCE TO EMPLOYERS IF ICE INITIATES AN ICE AUDIT

  • If ICE issues a civil subpoena for an I-9 Notice of Inspection to an employer, the employer should request an extension of time to surrender the I-9’s. Absent an extension, ICE will require that they be ready 3 days later.

  • At a later time (frequently 6 to 12 months later), ICE will give the employer an opportunity to make technical corrections for minor errors on the I-9’s. There will be no monetary fines for technical errors that are corrected.

  • For substantive errors (i.e. the form is not signed or dated by the employee or employer, or failure to itemize the documents that HR looked at the time of hire etc.), ICE will fine – typically $2,000 per I-9 with a substantive error. A missing I-9 is also a substantive error.

  • If ICE determines that some of the employees are not work authorized (and their documents are not genuine), they will issue a Notice of Suspect Documents. The employer must then must meet with each employee on the list, and absent an error or misunderstanding, must timely terminate the employee. If a large number of employees will need to be terminated, the employer can request ICE for additional time to find replacement workers – ICE will sometimes grant an extension to do this.

  • Then ICE will issue a Notice of Intent to Fine for those I-9’s that have substantive violations. If the employer feels that the fines are excessive, they may appeal to the U.S. Department of Justice Office of the Chief Administrative Hearing Officer.

California AB 450 Notice Requirements After an ICE I-9 Audit Begins

  • If your company receives an I-9 Notice of Inspection from ICE, you must post a notice and notify any Union – all within 72 hours. The posting must be in the language that the majority of the workers converse in. If in doubt, post it in both English and Spanish.

  • Fines for violation of the notice requirements can be up to $10,000 per violation.

Here is the required posting notice issued by DLSE:
English version 
Spanish version
FAQ’s from DLSE can be found here.

  • In addition, each time ICE comes back with findings in the form of a Notice of Technical Corrections and also later on with a Notice of Suspect Documents (to terminate certain employees), each affected employee must be notified as well as any Union – all within 72 hours.

  • In addition, the employee has a right to counsel at their own expense when an employer is reviewing their I-9 with them.

ICE IMAGE Program

IMAGE is a voluntary partnership initiative between the federal government and private sector employers. The initiative is designed to foster cooperative relationships and to strengthen overall hiring practices and self-policing of I-9’s.  It can be used as a negotiating tool if a company is audited by ICE.

What does ICE agree to do as part of IMAGE?

  • IMAGE was designed as a partnership initiative between the government and private sector employers. To that end, ICE is committed to working with IMAGE participants in the following ways:

  • ICE will waive potential fines if substantive violations are discovered on fewer than 50 percent of the required Forms I-9.

  • In instances where more than 50 percent of the Forms I-9 contain substantive violations, ICE will mitigate fines or issue fines at the statutory minimum of $216 per violation.

  • ICE will not conduct another Form I-9 inspection of the company for a two-year period.

  • ICE will provide information and training before, during and after inspection.

For more information on Image see here.

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

For more information see the National Law Review Immigration Law page.

Can They Really Do That?

Effective October 18, 2017, the U.S. Department of Homeland Security (DHS), U.S. Citizenship & Immigration Services (USCIS), Immigration & Customs Enforcement (ICE), Customs & Border Protection (CBP), Index, and National File Tracking System of Records, implemented new or modified uses of information maintained on individuals as they pass through the immigration process.

The new regulation updates the categories of individuals covered, to include: individuals acting as legal guardians or designated representatives in immigration proceedings involving an individual who is physically or developmentally disabled or severely mentally impaired (when authorized); Civil Surgeons who conduct and certify medical examinations for immigration benefits; law enforcement officers who certify a benefit requestor’s cooperation in the investigation or prosecution of a criminal activity; and interpreters.

It also expands the categories of records to include: country of nationality; country of residence; the USCIS Online Account Number; social media handles, aliases, associated identifiable information, and search results; and EOIR and BIA proceedings information.

The new regulation also includes updated record source categories to include: publicly available information obtained from the internet; public records; public institutions; interviewees; commercial data providers; and information With this latest expansion of data allowed to be collected, it begs the question: How does one protect sensitive data housed on electronic devices? In addition to inspecting all persons, baggage and merchandise at a port-of-entry, CBP does indeed have the authority to search electronic devices too. CBP’s stance is that consent is not required for such a search. This position is supported by the U.S. Supreme Court, which has determined that such border searches constitute reasonable searches; and therefore, do not run afoul of the Fourth Amendment.

Despite this broad license afforded CBP at the port-of-entry, CBP’s authority is checked somewhat in that such searches do not include information located solely in the cloud. Information subject to search must be physically stored on the device in order to be accessible at the port-of-entry. Additionally, examination of attorney-client privileged communications contained on electronic devices first requires CBP’s consultation with Associate/Assistant Chief Counsel of the U.S. Attorney’s Office.

So what may one do to prevent seizure of an electronic device or avoid disclosure of confidential data to CBP during a border search? The New York and Canadian Bar Associations have compiled the following recommendations:

  • Consider carrying a temporary or travel laptop cleansed of sensitive local documents and information. Access data through a VPN connection or cloud-based warehousing.
  • Consider carrying temporary mobile devices stripped of contacts and other confidential information. Have calls forwarded from your office number to the unpublished mobile number when traveling.

  • Back up data and shut down your electronic device well before reaching the inspection area to eliminate access to Random Access Memory.

  • Use an alternate account to hold sensitive information. Apply strong encryption and complex passwords.

  • Partition and encrypt the hard drive.

  • Protect the data port.
  • Clean your electronic device(s) following return.

  • Wipe smartphones remotely.

This post was written by Jennifer Cory of Womble Bond Dickinson (US) LLP All Rights Reserved.,Copyright © 2017
For more Immigration legal analysis, go to The National Law Review

A New Judge is in Town to Rule on I-9 Violation Penalties

Greenberg Traurig Law firm

Last week Stacy Stiffel Paddack was announced as the newest Administrative Law Judge (ALJ) at the Office of the Chief Administrative Hearing Officer (OCAHO). Judge Paddack will rule on the proper penalty in immigration compliance (Form I-9 violations) cases brought by U.S. Immigration and Customs Enforcement (ICE). Welcome aboard, Judge Paddack.

The statutory range for I-9 violations is $110 – $1100 per defective Form I-9. In calculating the proposed penalty amount for I-9 violations, ICE divides the number of violations by the number of employees for which a Form I-9 should have been prepared to obtain a violation percentage. This percentage is used as a baseline fine amount, with deviations available depending on factors such as whether or not this is the employer’s first offense, size of the employer, and whether unauthorized aliens were working for the employer. ICE applies a mechanical calculation when determining the penalty amount and there is little discretion exercised benefitting the employer. ICE’s standard fine amounts are listed in the table below:

 

Standard Fine Amount
Substantive Verification Violations 1st Offense
$110 – $1100		 2nd Offense
$110 – $1100		 3rd Offense +
$110 – $1100

0% – 9%

$110

$550

$1,100

10% – 19%

$275

$650

$1,100

20% – 29%

$440

$750

$1,100

30% – 39%

$605

$850

$1,100

40% – 49%

$770

$950

$1,100

50% or more

$935

$1,100

$1,100

OCAHO is not bound by ICE’s methodology, and ALJs like Judge Paddack can consider factors not included in ICE’s chart when determining the proper penalty amount, such as ability to pay the proposed penalty and any deterrent effect of the proposed penalty, and can weigh the different factors unequally. A review of OCAHO decisions reveals that the final penalty amount ordered by OCAHO is often significantly lower than the figure on the ICE penalty chart.

ARTICLE BY

Scott T. Decker
OF
Greenberg Traurig, LLP

ICE Worksite Fines, No Thaw in Sight for 2013! (Immigration and Customs Enforcement)

The National Law Review recently published an article regarding Immigration Compliance written by Dawn M. Lurie with Sheppard, Mullin, Richter & Hampton LLP:

Sheppard Mullin 2012

Just how much money did Immigration and Customs Enforcement (ICE) fine US companies last year? While we don’t have an exact number confirmed by the government, we do know the fine amounts skyrocketed to over $10 million according to data released by ICE in response to a request from the Associated Press. What’s more important is the fact that ICE issued over 3,000 Notices of Inspection (NOI) in FY 2012. An NOI initiates a government administrative inspection of a company’s Form I-9s. NOIs are considered administrative tools which are used to assist in criminal investigations. We also know that 238 company managers were arrested last year in light of these investigations. Under the Obama administration, civil administrative audits are just one of many tools ICE is using to reduce the demand for unauthorized unemployment and protect opportunities for U.S. workers. This enforcement strategy also includes the expanded use of civil penalties, employer audits, and debarment. While ICE has told stakeholders it no longer tracks the conclusion of an investigation or whether a matter is being pursued before the Office of the Chief Administrative Hearing Officer (OCAHO), we know the Agency does track how many Notices of Inspection (NOIs), Notices of Fines, Final Orders, and Debarments it issues. The scope of this Alert does not cover debarments for federal contractors, but it should be noted that ICE has rapidly expanded the program and continues to refine the suspension and debarment process.

With comprehensive immigration reform on the horizon and President Obama’s proposal calling for “cracking down on employers hiring undocumented workers,” we can expect at least another 3,000 audits in 2013 (bets anyone?). ICE is fairly predictable and consistent in its approach to worksite enforcement. In fact, it is likely we will see the first round of audits by mid-March. While the days of “worksite enforcement actions” (AKA raids) are gone, there are many in the government that still agree with the words of Julie Myers Wood, a current proponent for comprehensive immigration reform and former Department of Homeland Security Assistant Secretary for ICE who said, “We want to send the message that your cost of business just went up because you risk your livelihood, your corporate reputation and your personal freedom.” Wood was also quoted as saying that ICE was prosecuting “individuals who have profited from hiring illegal aliens…we’re going after their houses, their Mercedes and any money that they have, as well.”

For certain, NOIs and administrative audits are something every employer needs to take very seriously. These inspections are clearly serving as examples and being used as deterrents. Again, as immigration reform heats up and the Administration focuses on effectuating a new policy, the fines are likely to increase and enforcement efforts will be stepped up. The inequities that plague the worksite program in terms of how some employers are treated verses other employers will likely be addressed during the reform process. We can also expect that once reform is effectuated there will be serious consequences embedded in the legislation, not only for employers, but also for employees that work without authorization. That said, in order toemployers to the government, and provide employers with adequate tools and discernible guidance to determine who is authorized to work and who is not.

In the meantime, the fine amounts listed below, coupled with ensuing bad P.R., legal expenses and other drains on a company involved in a worksite investigation should be high enough to catch the attention of “mom & pop” employers and the Board of Directors of public companies alike.

Specifics from four states

In numbers that were just released today, February 5th, ICE noted it fined 10 businesses in San Diego and Imperial counties more than $173,800 for hiring “unlawful” employees. In addition to listing the names of the businesses and the amounts fined the agency noted in a news release, “In fiscal year 2012, HSI conducted 151 worksite audits in San Diego and Imperial counties, compared to 86 audits the previous year and 63 audits in fiscal year 2010.”

In Massachusetts, ICE issued a total of thirty-five NOIs and ultimately fined seventeen employers for a total of $349,620. The fines hit Northern Pelagic Group (NORPEL) particularly hard with the highest amount fined in Massachusetts, $151,200. Special agent in charge (SAC) of Homeland Security Investigations (HSI) Boston Bruce M. Foucart disclosed that ICE’s investigation of NORPEL discovered 351 suspect documents, which according to Foucart “for the most part…means the employee[s] [were] illegal.”

Companies in Connecticut were fined a total of $132,584. Out of the eighteen inspections ICE conducted, ICE issued twelve fines to Connecticut companies ranging from $45,000 to $1,386. Calabro Cheese Corporation of East Haven received the highest fine of $45,000. Foucart, who has jurisdiction over this area as well, announced that the company had a “significant amount” of workers with suspect documents, along with “supporting documents that were not real or were from someone else.” Calabro’s general manager Rich Kaminski noted that ICE “led all of the people who were illegal out of [the company] on the same day.”

Rounding third on the list of fines was Maine with a grand total of $78,967. Out of the twenty-two inspections ICE conducted, eight resulted in fines ranging from $13,900 to $1,777. While substantial, these numbers represent a significant drop from ICE’s total fines of $150,000 for only six Maine companies in 2011. SAC Foucart of Boston who oversees HSI throughout New England noted that these settlements will “serve as a reminder to employers that HSI will continue to hold them accountable for hiring and maintaining a legal and compliant workforce.” Foucart expanded that employers should “take the employment verification process seriously” because ICE is expanding the number of audits it is conducting each year, focusing on employers that are “knowingly employing illegal workers.” According to Foucart, ICE will continue to target specific industries and businesses known or alleged to hire illegal workers. ICE has continued its trend of ramping up worksite enforcement efforts in the criminal arenas, as well. Last October, three individuals were arrested for unlawful employment and for conspiracy to induce illegal aliens to reside in the United States. The indictment alleges that the three owners of the Bamboo Village restaurant in Rosenberg, Texas, hired employees without completing Form I-9s or viewing identification and work authorization documents. If convicted of the conspiracy charge, the owners could face up to ten years in prison and a $250,000 fine.

In September, Micro Solutions Enterprises (MSE) and its owner both pled guilty to criminal charges resulting from a HSI investigation in 2007. As part of its plea bargain, MSE pled guiltyto one misdemeanor count of continuing to employ unauthorized workers, admitted to hiring fifty-five unauthorized workers and continuing to employ them, will pay $267,000 in civil and criminal fines, and is on a three-year probation term with implementation of “stringent measures” to ensure it is complying with hiring laws. MSE’s owner pled guilty to one felony count of false representation of a Social Security number and faces up to five years in prison and up to a $250,000 fine.

There is good news to add in at this point. A review of recent OCAHO decisions, illustrates that for the majority of those employers challenging the fine assessments ICE in 2012, the court reduced the amounts of the fines/penalties sought by the government.

The Takeaway

What is the bottom line? Take NOIs seriously. Consider while some companies get lucky with new/inexperienced auditors and agents who may not have the time or interest to pursue an investigation, other special agents remain aggressive. Also consider that in many instances neither ICE nor the U.S. Attorney’s office will forgive companies who they consider to be “willfully blind”. Ignoring a “problematic” work force, identity theft issues, and error-ridden Form I-9s can lead to the knowing hiring or continued employment of unauthorized workers. At the same time, if you have received a fine notice from ICE after trying to negotiate a reasonable settlement, don’t rule out a hearing before OCAHO, if the economics warrant, and the company has the appetite to challenge the fine assessment.

The message remains the same: Be proactive; review your Form I-9-related compliance; conduct internal audits supervised by experienced counsel and act on the results; do not ignore unconventional Social Security no-match notifications (such as unemployment claims of employees not working at your company) and potential identity theft issues; provide ongoing training to those individuals completing Form I-9s; seriously consider the use of E-Verify, and finally, above all else, institute a written compliance plan and establish workable policies.

Copyright © 2013, Sheppard Mullin Richter & Hampton LLP