[caption id="attachment_6357" align="aligncenter" width="620"] Foreign nationals are arrested by U.S. Immigration and Customs Enforcement (ICE).[/caption] This week, Immigration and Customs Enforcement (ICE) served a hundred 7-Eleven stores nationwide with notices of inspection and detained twenty-one undocumented workers. ICE will require the 7-Eleven stores to produce documents showing 7-Eleven required work authorizations from their employees. The 7-Eleven action comes a few days after the Trump administration announced that they are ending a humanitarian program, known as Temporary Protected Status, for approximately 200,000 El Salvadorans who have been allowed to live and work in the United States legally since devastating earthquakes hit their country in 2001. The action against 7-Eleven stems from a four-year old case against a 7-Eleven franchisee in New York. While the action this week may have been a surprise to some, the Trump administration’s commitment to immigration enforcement shouldn’t be. Last year, U.S. Attorney General Jeff Sessions issued a new directive on immigration enforcement which focused on re-entry and entry prosecutions and mentioned 8 U.S.C. §1324, which addresses smuggling and harboring, the core statute used for worksite enforcement cases. ICE’s worksite enforcement program focuses on criminal prosecution of employers of undocumented workers, particularly companies who utilize unauthorized workers as a business model, mistreat workers, engage in identity fraud, human trafficking, or smuggling, or participate in other criminal conduct. Prosecutors use the smuggling and harboring statute for worksite enforcement cases, which can impose significant jail time for employers, depending on the number of unauthorized workers. And the smuggling and harboring statutes have a lower standard of proof—instead of requiring knowledge, recklessness is sufficient. The smuggling and harboring statutes also provide for asset forfeiture, which creates a significant incentive for ICE to prosecute the cases. The reinstatement of the worksite enforcement program means that employers of undocumented workers can face serious consequences, both in terms of potential fines and jail time. Sessions’ 2017 directive made it clear that immigration enforcement (including worksite enforcement) would become one of the U.S. Department of Justice’s priorities. And it did. As Corporate Counsel predicted following the election, the Trump administration is making good on Trump’s campaign promises to expand immigration enforcement, which has already seen a 40 percent increase in deportation arrests across the nation. Top ICE officials have warned that the 7-Eleven action is the first of many and should send a strong message to U.S. employers that they will be held accountable for hiring unauthorized workers. Companies should take a proactive approach to increased worksite enforcement. Here are three steps to get started:
- Companies should ensure they have effective policies and procedures in place to deal with immigration compliance. The company’s hiring process should include clear procedures on immigration screening to ensure compliance with immigration requirements. The government offers the E-Verify program to assist companies with immigration compliance screening of potential employees.
- After implementing policies and procedures, companies should educate employees on expectations of the compliance program. Companies should identify employees whose job description includes handling immigration issues (e.g., HR management) and provide training on the immigration process, potential issues, and appropriate responses.
- Monitoring is essential to program effectiveness. Companies should develop a plan for responding to compliance failures and conduct audits to ensure employees follow the rules. For example, the company could audit I-9 forms (the forms that employers are required to use to collect information on employment eligibility) for technical and procedural errors and adequate documentation. Companies should also make sure employees know how to confidentially report suspected unauthorized employment practices through a helpline or some other reporting mechanism.
A company’s immigration compliance program will vary depending on the company’s size and business environment. Addressing compliance and immigration enforcement will help address issues proactively and minimize exposure in the event of a compliance failure. Ryan McConnell and Stephanie Bustamante are lawyers at R. McConnell Group—a compliance boutique law firm in Houston, Texas. McConnell is a former assistant U.S. Attorney in Houston who has taught criminal procedure and corporate compliance at the University of Houston Law Center. He also prosecuted a number of significant worksite cases while an AUSA resulting in millions of dollars in fines and criminal charges against individuals. Bustamante’s work at the firm focuses on risk and compliance issues in addition to assisting clients with responding to compliance failures. Send column ideas to firstname.lastname@example.org. Follow the firm on Twitter @RMcConnellGroup.