June 10 2008 Newsletter
Immigration Update: New, Tough Era in Workplace Enforcement

June 10, 2008
By Robert D. Aronson

DEAR CLIENTS AND FRIENDS:

I am haunted these days by a quote attributed to the late Swiss writer, Max Frisch, which reads: ''We wanted workers, we got people."

I believe that this quote has particular salience in light of a number of recent, widely reported immigration raids conducted by the Department of Homeland Security that quite possibly usher in a new and very disturbing era of workplace enforcement actions that will profoundly affect employers, communities, and foreign nationals – both those who are legal and those who are unauthorized.

The richness of my professional life as an immigration lawyer consists, in large measure, in working with both employers and foreign nationals – the former, to enhance their competitiveness and/or professional excellence through their employment of critically needed, oftentimes highly impressive foreign professionals, and the latter, in enabling foreign nationals and their families to build their personal and professional dreams in this country. But particularly given an increasingly energized effort by the U.S. Government to staunch illegal immigration through workplace audits and raids, we have become progressively more involved in working with our corporate clientele to develop their immigration compliance programs and to deal with any follow-up inquiries or actions from the U.S. Government.

So, in this Newsletter, let me present some of my thoughts on current emerging issues in the enforcement sphere, largely as illustrated through a recently staged and widely publicized raid conducted on the Agriprocessors meat processing plant, which is the nation’s largest kosher meat processing plant, located in Postville, Iowa. In that raid, Immigration and Customs Enforcement (ICE), the main immigration enforcement agency, in conjunction with various federal, state, and local law enforcement agencies conducted a massive workplace action in which 389 workers (out of a total workforce numbering around 900) have been detained and the vast majority – specifically, 297 foreign nationals – are now facing criminal charges that in large measure are being conducted in a highly expedited manner for a range of alleged offences, including: aggravated identity theft, falsely using a Social Security number, illegally reentering the United States after being deported, criminal conspiracy, fraudulently using an alien registration card, narcotic drug possession, etc. In short, the Government appears no longer interested in pursuing deportation actions for immigration violations (which is an administrative action), but is using this raid as the catalyst for filing criminal actions against an unskilled, low wage, and largely non-English speaking workforce that had already been subjected by their employer to widespread abuse and substandard wage and working conditions, as well as its apparent complicity in allowing – and maybe even facilitating - a pattern of unlawful employment.

In addition, it appears that the U.S. Attorney’s Office is contemplating the filing of criminal charges against certain individuals in the Agriprocessors’ management team, and the company conceivably will face a broad range of administrative, civil, and criminal actions running from labor and employment law violations to income tax liability.

Consequences to the Community

In the aftermath of the raid, the community of Postville is now reeling from this action. Many of the detained workers have families with U.S. citizen spouses or children who are now facing an uncertain and, in many instances, an impoverished future; a community once known for its tolerance among its native Iowan, Hispanic, immigrant, and Hasidic (i.e., Orthodox Jewish) communities is fractured, battered, and riddled with suspicion and accusation; the city’s local economy is in shambles as its largest employer has been shut-down with a poor prognosis for recovery; the city’s social services are overextended as children and families now require unforeseen services; the local school system is in convulsion as many children of incarcerated workers – many of whom are U.S. citizens – are no longer able to pursue their studies or their lives in the community.

Lessons to be Learned on Current Enforcement Policy

The Postville raid and similar such actions reflect a tough, new enforcement policy that regards the workplace as the most effective choke point in order to staunch the inflow of unauthorized foreign nationals to the United States. In the past, an employer could largely insulate itself from liability through reliance on the I-9 Employment Eligibility Form, which requires the attestation to the facial validity of identity and work authorization documentation presented by new employees. More recently, the combination of new technologies and a vastly increased emphasis on immigration compliance have led to a tough new standard on what constitutes “constructive knowledge” so as to place an employer on notice that its workforce may not be entirely authorized for employment. To this end, the Government has unveiled various new programs that although thus far not mandatory, nevertheless suggest a responsibility of an employer to go beyond the facial validity of the I-9 documentation to determine an individual’s substantive authorization to work in the United States.

The lesson from Postville and its progeny is simply this: It is tragic not only in terms of the high level of resultant human and community suffering, but from a policy standpoint, it is tragic because it should be so easily avoidable. These are low wage, unskilled workers who are working in jobs of benefit to this country that are not filled by U.S. workers. It is no longer reasonable to believe that increased wages and enhanced working conditions will lead U.S. workers into these types of jobs given population stagnation, rising socio-economic expectations and opportunities, and the emergence (in fact, the veneration) of the “knowledge class.” This country needs desperately a Temporary Worker Program that will open up certain sectors of the U.S. economy that have structural labor deficiencies. The United States in the past had such a program for agricultural workers – the Bracero Program – and it is time to shed the prevailing ideology of “Fortress America” for a more realistic accommodation to current economic realities in this globalized world. Admittedly, there are challenges to the creation of such a Program, running from the allowable numerical levels, labor market protections, duration of stay, qualifying job sectors, options for long-term status, etc. But these issues deserve debate and consideration within the Congress rather than an inflexible, doctrinal refusal to consider immigration reform legislation.

Moving Forward in this New Enforcement Context

While the Postville raid was aimed at a low-wage, low-skilled enterprise, the scope of ICE enforcement actions now touches a progressively broadened range of U.S. business concerns, including high tech, service, retail, agricultural, manufacturing, and academic institutions. Immigration compliance today takes on the same significance as corporate compliance efforts in other areas of business activity, such as securities, environmental, employment, labor, tax, accounting, etc. As such, employers should consider the following measures to ensure their compliance with their immigration-related responsibilities:

1. Be Proactive. The “facial validity standard” of the I-9 Employment Verification Form is no longer sacrosanct, meaning that employers may need to take more active steps to judge a new hire’s identity and authorization to work, including articulated policies on E-Verify enrollment and Social Security “No Match” letters;

2. Stay Up-to-Date. It is imperative for employers to have updated personnel and employment policies and procedures that address new compliance driven obligations, and firmly, unequivocally commit to immigration compliance as a key corporate ethos;

3. Make Education and Training a Priority. Employers should not only create a culture of immigration compliance, but equally importantly should develop a sustained education and training commitment intended, in essence, to ensure the legality of their workforce without engaging in discriminatory hiring practices so as to raise liability under our Anti-Discrimination Provisions;

4. Have a Professional Team for Compliance. Employers need to develop an equivalent spectrum of legal and professional resources that are used in the development of compliance programs in other aspects of their business;

5. Centralize Immigration Compliance. Employers should centralize their immigration-related employment and compliance function/document retention so as to exercise over it strong, ongoing control;

6. Be Aware of Your Exposure. Corporate management needs to be aware that they could face personal liability for recurrent and/or gross compliance violations;

7. Understand Employee Liability. From the standpoint of individual workers, unauthorized alien employees no longer face simply the administrative threat of removal, but a real possibility of criminal charges intended to punish and remove workplace violators;

8. Understand the Stakes. Government enforcement actions are being highly publicized in order to send a clear message to both the employer and foreign national communities, and this fact alone raises a major potential of prosecutorial abuse and public relations disaster;

9. Scope of Governmental Resources. The government has vastly increased webs of information that enable it to link discrepancies in an employer’s workforce enforcement to broader patterns of violations of the law, including criminal activities that go well beyond mere immigration infractions;

10. Understand Larger Goals of Workplace Enforcement. And above all, an employer’s violation of its immigration responsibilities serves as simply the government’s entry point for launching sustained, focused, and highly disruptive administrative, civil, and criminal actions that are intended to reinforce the transformation of the workplace into the front line defense against illegal immigration.

Governmental Obligations in Immigration Enforcement Actions

As a nation of laws, the government has a right and, indeed, an obligation to engage in sustained, ethical, effective, and humane enforcement actions. If the law is contrary to the national welfare (and in my opinion, the absence of a Temporary Worker Program is highly counterproductive), the Congress should take appropriate measures to pass new legislation. Until that happens, ICE has the right to enforce our immigration laws, including workplace raids and enforcement actions.

But this mandate does not give ICE unfettered discretion. Rather, the government’s enforcement efforts should be premised on certain standards of conduct, including:

1. As a reflection of the most profound and entrenched American values, the U.S. Government should enforce the law without causing unnecessary trauma and fear. Home raids should only be conducted against high priority targets that are believed to pose a threat to public safety and order, and should be done only in close coordination with local law enforcement authorities.

2. In order to ensure that raids are performed in a manner that protect constitutional and civil rights, all raids should be conducted pursuant to a valid search warrant.

3. Guidelines governing the execution of worksite raids and procedures for identifying and addressing humanitarian concerns should apply in all raids, regardless of the size of the employer.

4. ICE must ensure that no children whose parents are arrested in a raid are left alone, even if that requires the supervised release of the detained individual.

5. ICE should consult with immigrant communities to ensure that families can safely and immediately determine the whereabouts of their loved ones.

6. ICE should not use raids in ways which would discourage undocumented immigrants from sending their children to public schools; accessing emergency medical, fire, shelter, and police services; or from participating in workplace 6. safety related activities.

7. ICE should not transfer detainees to facilities far from their families and support systems or without immediate notification to family and counsel.

8. ICE should conduct extensive training to ensure that its agents are apprised of changes to immigration law and policies; follow established guidelines; adequately consult with local law enforcement, social service, and other local and community agencies; and appropriately apply discretion, especially in humanitarian cases.

9. The U.S. Government should not, except under exceptional circumstances, commit apprehended aliens to expedited criminal prosecution in which barriers of culture, education, and language serve all too often lead to a derogation of due process and the imposition of criminal penalties that are not knowingly given.

10. ICE should allow and facilitate the ability of non-governmental organizations to give “Know Your Rights” presentations to detainees that have been arrested in a raid, and ensure that detainees’ attorneys have access to their detained clients.

So What Are the Next Steps?

Unless and until we see some meaningful reform, we will continue to see repeatedly the human and communal tragedy now unfolding in Postville and other communities of our nation. There are simply too many factors that lead to widespread violations of our immigration laws in the workplace: a deteriorating economic situation in the home country, the lure of comparatively high wages, the availability of jobs requiring little training or language skills, an employer culture that countenances and sometimes even encourages immigration violations to gain access to low-wage workers, a Government policy (at least until recently) that tolerated this pattern of immigration violations as a realistic accommodation to business needs, and a growing disrespect for our immigration laws. For the nation, we can do better; for employers, there are new challenges in the conduct of business; for foreign nationals, the stakes have never been so high.

We would be pleased to further discuss the subject of this Newsletter, and to assist the stakeholders in the immigration process – both employers and individuals – to know your immigration rights and responsibilities, and to take appropriate steps to ensure your compliance. Thank you and please feel free to contact us with further questions or concerns.

Cordially,

ROBERT D. ARONSON

This memorandum is one of a series of communications prepared as a general public service to our clients and friends. The information herein presented is not intended nor should it be utilized as legal advice on any specific situation. Furthermore, given the rapid pace of change, the veracity of this information is constantly subject to modification and/or reversal. Rather, this piece represents a good faith attempt to orient clients and other interested parties served by Aronson & Associates to current immigration developments. This piece in no manner supercedes the need to seek competent legal advice when engaged in activities carrying possible immigration-related consequences.