The Numbers Tell the Story:

Increased Number of Raids Provides Good Reason for Employer to Check Their Immigration Policies

Sometimes all you need is numbers to tell a story. If anyone wants proof that employers are now the central focus of immigration enforcement efforts, they need only look at the following numbers:

• 11,000,000 – The number of dollars Wal-Mart was fined for civil immigration violations in 2005. The investigation involved issues of hiring undocumented workers and form I-9 violations.
• 53,000,000 – The estimated amount of dollars lost by Swift & Co. (now “JBS Swift & Co.”) because of lost enforcement raids on six plants in late 2006. The costs included loss of productivity due to the arrest of more than 1,200 undocumented workers who were removed from payroll.
• 85 – The number of Agriprocessors, Inc. (a giant meat plant) employees who pled guilty to criminal felonies related to immigration after an immigration raid in May 2008.
• 1,000,000 – The number of dollars McDonald’s franchisee Mack Associates was fined after pleading guilty this year to supplying illegal workers with false identification.
• 595 – The number of Howard Industries, Inc. worker’s arrested as suspected illegal workers in August this year. Howard Industries, Inc. is a large electronic transformer manufacturing plant in Laurel Mississippi. Business managers in that area have told this author that the plant has since cut production dramatically and may close, which would be a devastating blow to the areas work force and economy.
• 12,000,000 – The number of estimated undocumented people in the United States, the majority of which are working. They account for about 5% of the U.S. workforce.
• 4,000 – The number of immigration arrests made by Immigration and Customs Enforcement (“ICE”) at workplace factories and plants in 2007. This number was ten times larger than it was in 2002. The total of immigration arrests at plants and factories will be much larger this year than in 2007.
• 58 – The percentage of federal prosecutions that were immigration cases in April 2008. There were three times more immigration prosecutions than drug prosecutions during this month.

The numbers don’t lie. Employers need to be aware of the liability involved with immigration enforcement. This fact does not mean that employers should resist hiring foreign workers. To the contrary, foreign workers are an important element of the workforce, with skills or hard work ethics that are needed in our economy.

There are several steps employers should take to avoid liability. First, companies need to make sure that their I-9 procedures and policies are up-to-date and efficient. The I-9 program is an employment verification program that subjects employers to immigration fines or other actions if not correctly followed. Immigration counsel can review a company’s I-9 program and, in many cases, improve it.

Second, employers should consult immigration counsel before entering the government’s E-Verify program. E-Verify is a program that requires employers to electronically enter I-9 information in the government’s system for verification of employment authorization. E-Verify is not a perfect system. It has been plagued by errors, causing employers to suspect work authorized individuals of committing immigration violations. In addition, the program does not appear to shield companies from raids and the concomitant losses of revenue. Both Swift & Co. and Howard Industries, Inc. were enrolled E-Verify.

Third, if a company uses independent contractors, it should have a written contract with the contractors clearly stating that it is the contractor’s obligation to provide workers who are authorized to work in the United States. In addition, the company should consult with immigration counsel to determine if its use of these workers exposes it to liability, because they are treated like employees. In addition, sound legal advice should be employed to draft employment and immigration policies to ensure that the company does not violate immigration laws. Wal-Mart’s record fine involved the improper use of undocumented contract workers.

Fourth, companies should always scrupulously observe the terms and conditions of immigration visas belonging to workers they sponsor. Proposed changes in work conditions, such as promotions, new duties, or a reduction in salary must be reported to immigration counsel in advance to avoid a serious status or work authorization violation.

The number of workplace raids and immigration audits will only rise in the foreseeable future. Therefore, many employers will need sound immigration advice to avoid exposure to workplace immigration liability. The lawyers at Garg & Associates, PC are very experienced in all immigration matters and can assist you with any questions regarding your foreign workforce.