September 29, 2006

Immigration Compliance Alert for Employers

GT recently learned that Immigration and Customs Enforcement (ICE) has been tasked to create "enforcement units" by October 2006 as part of a new aggressive plan to increase work place raids and criminal investigations. In addition, we are hearing that there is an effort underway to place ICE attorneys in U.S. Attorney offices as a means of immigration enforcement fortification. ICE is encouraging agents to pursue, whenever possible, criminal enforcement actions during these raids. The focus of the raids is primarily on criminal prosecution. Practices such as the use of wired informants and video are being employed.

In the past, ICE has primarily relied on civil monetary penalties to punish "bad actor" employers. Now, however, ICE is cracking down and seeking harsh criminal sanctions against these employer. They are determined to punish companies under criminal statutes including RICO, alien smuggling, harboring, inducing or encouraging under immigration law and drug and money laundering statutes. The objective appears to be to deport the illegals, deter others from entering and incarcerate "bad actor" employers. In addition, ICE is taking an increased interest in analyzing the transmission and source of funding and is investigating inflated payrolls often used to launder money into the U.S. Finally, we understand that ICE is getting subcontractors to bear witness against prime contractors for compensation. This is just one vehicle being used to get to the general contractors.

In addition to the statutes mentioned above, ICE is relying on the "reckless disregard" provision in the Immigration and Nationality Act to support their efforts. It is ICE’s conviction that simple observance of a van full of Mexican workers showing up to a worksite may trigger an employer’s duty to inquire as to the subcontractor's employees status - in ICE’s opinion, this constitutes reckless disregard.

GT is very concerned about ICE employing the above tactics. This is just an additional reason why we need to continue to push for comprehensive immigration reform. As we learn more, we will update you immediately.