In the early and mid-2000s, aggressive federal enforcement of the immigration laws was a common topic of concern among manufacturing, agricultural, food processing, and other industries that rely on hourly and seasonal labor.
But after the change in presidential administrations in 2008 and the renewal of public attention on immigration reform, observers began to wonder if the enforcement climate was shifting. Immigration & Customs Enforcement (ICE) and the Department of Justice (DOJ)—as well as other government agencies that sometimes play a role in policing unauthorized workers—seemed to be shying away from raids, round-ups, and other flashy tactics that had earned them media headlines in past years.
As a result, many corporate managers optimistically concluded that this period marked the beginning of a permanent decline in federal worksite enforcement investigations.
The reality is more complicated. Immigration issues remain a priority of the federal government, but agencies have developed more nuanced tools to root out and punish noncompliance.
This new enforcement landscape simultaneously benefits and disadvantages employers, who must educate themselves about the new challenges and then find ways to navigate them.
Recent Enforcement Strategies
The decline in the size and frequency of immigration raids and worker deportations—which, to be sure, have not disappeared altogether—has coincided with the emergence and proliferation of at least three additional ways for government agencies to hold an employer accountable for immigration issues affecting its labor force.
First, the number of ICE desk audits has increased dramatically. Thousands of employers across the country have been subjected to these audits in recent years.
A desk audit is an investigative tool by which ICE issues a written Notice of Inspection and sends ICE agents to inspect company documents and personnel files, including Forms I-9. Based on the results of the inspection, ICE can seek to impose fines and other penalties.
What many employers do not realize is that the government's findings from an innocuous-sounding desk audit can be used to build a criminal case against the company and its employees.
Second, a little-known part of DOJ called the Office of Special Counsel for Immigration-Related Employment Practices (OSC) has stepped up civil enforcement actions against employers who are deemed to have violated the anti-discrimination laws, successfully imposing hundreds of thousands of dollars in penalties and other remedial requirements.
Perhaps ironically, stringent hiring practices intended to screen out unauthorized workers may be viewed as unlawful by OSC, which creates a veritable minefield for employers. For instance, requesting an extra form of personal identification from a job applicant with a foreign background has been interpreted by OSC as document abuse, meaning that an employer is unlawfully discriminating against non-U.S. citizens by burdening them with additional documentary requirements.
Thus, federal agencies are placing employers in between the proverbial rock and a hard place, with ICE expecting them to root out unauthorized workers and perpetrators of identity fraud while, at the same time, OSC can seek to penalize them for efforts that it perceives as overly zealous.
Third, DOJ has been testing out novel legal theories that may open up additional avenues of immigration-related liability for companies.
The Infosys Case
The most significant recent example of this trend is the $34 million immigration settlement entered into by Infosys Inc. in 2013, which stemmed from a civil False Claims Act lawsuit filed by DOJ in Texas.
The False Claims Act (FCA), which enables the government and/or "whistleblower" plaintiffs to sue a defendant for fraud committed against the government, had not previously been utilized as an enforcement tool in a high-profile immigration investigation.
DOJ's FCA action against Infosys asserted the novel theory that Infosys had defrauded the government by submitting applications for restricted visas despite knowledge that the individuals brought into the U.S. under those visas did not intend to comply with the visas' requirements. The resulting $34 million settlement was the largest immigration-related settlement in U.S. history. Although the workers in that case were not in fact unauthorized, the Infosys investigation shows that the government is willing to punish a company for employees lacking proper work authorization to equal or even greater effect.
Of course, whether the government employs more aggressive investigative tactics like undercover operations and raids or ICE desk audits and civil litigation depends in part on the nature of the evidence and the strength of the government's case. Although corporate executives cannot know for certain whether problematic conduct at their companies will be deemed serious enough to merit criminal enforcement, DOJ and ICE usually weigh certain common factors in deciding whether to pursue criminal prosecution.
First and foremost, DOJ and ICE consider whether the company knowingly hired unauthorized workers or retained them after learning their status. Other factors include a company's history of immigration compliance violations and the overall number of violations as a percentage of a company's workforce.
Another hallmark of criminal immigration cases is that they frequently involve employers alleged to be harboring unauthorized workers through the provision of company housing or company transportation, in addition to simply employing those workers.
Finally, the government often evaluates whether an employer has demonstrated good faith in attempting to comply with the immigration laws, such as by implementing a meaningful corporate compliance program and by disciplining employees (both those being hired and those doing the hiring) who violate the immigration laws or company compliance policies. Certain aggravating factors—such as paying less than minimum wage, not withholding taxes, and accepting patently false documents—are likely to invite a criminal case.
Tips for Responding to an Investigation
The government obtains leads about potential immigration violations in a number of ways: complaints submitted by legal workers, Social Security data or other information shared between government agenciesm the ICE desk audits mentioned above.
Suffice it to say that corporate executives cannot often anticipate exactly how or why their workforce will come under the government's microscope. What they can do, however, is arm themselves with some basic knowledge about how to respond in the event they must confront the worst-case scenario.
There is no one-size-fits-all strategy for a company's defense to a government investigation, which is most effective when tailored to the particular facts and circumstances of the case. The following steps, however, are widely accepted as important to a company's response:
● Preserving relevant documents.
● Marshalling key facts through interviews and document review.
● Evaluating the company's immigration compliance measures.
● Establishing an effective dialogue with prosecutors and case agents.
Additionally, in light of the risk that the government may execute a search warrant as part of its investigation, companies should familiarize their employees with proper search protocols. For instance, employees—especially management employees—should be trained to contact counsel upon the arrival of federal agents on company property and to request copies of the search warrant, the supporting affidavit, and the lead agent's credentials.
Employees should also be instructed about the importance of creating a written or videotaped record of the agents' activities and statements while they are on the premises.
Finally, employees should be reassured that the government is not infallible, and that a search or even a full-blown criminal investigation may not lead to criminal charges.
Advance preparation of this nature is essential to ensuring that employees do not panic or issue rash directives when federal agents knock at the door—particularly when, as in the case of an immigration raid, the agents may be causing a major disruption to business operations
Finally, companies employing large numbers of immigrant workers are encouraged to take preventive steps—both to lessen the likelihood of a government investigation and to make any remedial actions that might be required less onerous.
● In the immigration context, these proactive measures may include:
● Training human resources employees to spot suspect documents and identify fraud.
● Conducting internal audits of employment files.
Considering whether to adopt the government's E-Verify system for the verification of employees' work-authorization status.
Although employers understandably may be reluctant to take on additional compliance burdens, they must weigh that against the reality that federal immigration enforcement—though it may come in new and different forms—continues to pose a significant risk.
Paul B. Murphy is a partner in King & Spalding's Special Matters and Government Investigations Group. He is experienced in a wide range of criminal and civil matters and has counseled clients on corporate compliance issues. Amelia R. Medina is an associate in King & Spalding's Special Matters and Government Investigations Group. Her practice focuses on white collar criminal defense, internal investigations, and complex civil litigation.