Employers should prepare for immigration inspections
by Foster LLP, on News
By Chris Tomlinson, Houston Chronicle
Houston employers need to dot their i’s and cross their t’s, because immigration agents are stepping up demands of: “Show me your papers!”
U.S. Immigration and Customs Enforcement is expanding inspections of Form I-9s, which are used to verify an employee’s eligibility to work in the U.S. Fines for leaving a space empty can range from $216 to $2,156.
This is part of ICE implementing President Donald Trump’s executive order on border enforcement. Thomas Homan, acting director of Immigration and Customs Enforcement, told a conference at the Heritage Foundation in October that he plans to hire 10,000 new workplace enforcement officers and increase inspections by 400 percent to 500 percent to slow down illegal immigration.
“As long as they get jobs, they will try to come, so we are stepping up work site enforcement,” Homan said in comments recorded by C-SPAN. “We have already increased the number of work site inspections and work site operations, and you will see that significantly increase in this next fiscal year.”
“Now we’re going to prosecute the employer who knowingly hired the illegal aliens, and we’re going to prosecute, detain and remove the illegal alien workers.”
Several employers have told me about recent ICE inspections, and they’ve asked not to be named for understandable reasons. One employer said the inspection cost the company 32 hours of human resources time, $4,200 in legal fees and sent one employee, whom ICE accused of being the country illegally, scrambling for his naturalization papers and a congratulatory letter from President George W. Bush.
Charles Foster, a legendary immigration attorney who worked for Bush and advised President Barack Obama, said his clients are reporting increased, and sometimes overzealous, ICE operations.
“This is a complete change of policy. They are going back to aggressively enforcing every law available,” Foster said.
Foster said ICE suffers from a shortage of experienced agents, and new agents often exaggerate the severity of technical violations.
“In practice, that has been the greatest risk since it is often difficult for the government to prove that the employer had actual knowledge that the employee was unauthorized,” Foster said. “These paperwork violations can add up to significant amounts, and they are often piled up in order to give the government leverage in negotiating settlements.”
Foster recommended self-audits to make sure all forms are on file and in order, and the ICE website provides guidance on how to do it. Employers who think they may have hired someone with false papers should investigate immediately or risk criminal charges.
Asplundh Tree Experts, one of the nation’s largest tree-trimming companies, pleaded guilty in September to knowingly hiring people not authorized to work. The company agreed to a $95 million fine, the largest immigration settlement in U.S. history.
Employers, though, can go too far. Chinese restaurant chain Panda Express agreed to pay a $400,000 civil penalty and set up a $200,000 compensation fund for mistreating authorized immigrants. Panda Express made them repeatedly and needlessly produce immigration documents to reverify their ongoing work authorization. The company did not make the same demands on U.S. citizens.
“The anti-discrimination provision of the Immigration and Naturalization Act prohibits such requests for documents when based on an employee’s citizenship status or national origin,” the Justice Department said.
Employers are justified in thinking they are damned if they do and damned if they don’t. This is complicated and politically charged stuff, especially now. A company facing a formal audit will need an attorney, especially in Houston, where one in four people was born in another country.
Undoubtedly, the vast majority of immigrants who work the U.S. illegally are seeking wages and a better life for their families. But there is no good argument for knowingly hiring someone who is unauthorized to work here.
Homan and I differ, though, on the solution. Houston employers constantly complain of a labor shortage, which is why some hire unauthorized workers. The answer is immigration reform, not deportation.
Reform solves several problems. Currently, unscrupulous employers hire immigrants to underpay them so they can make lower bids and win more contracts. More than a quarter of day laborers in Houston say they were cheated out of promised wages, according to a study published in November by the University of Illinois at Chicago.
Honorable employers want immigration reform so they can hire these same workers and pay them a fair wage. Higher wages would also encourage more unemployed citizens to re-enter the job market and boost the economy.
Until we get reform, though, employers need to get their papers in order, because federal agents may soon appear at your door demanding, “Papers, please.”