Tuesday, November 27, 2012

Immigration Roundup: ICE Is Coming to Town

by Laura D. Francis

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In a stark demonstration of its enforcement policy targeting employers of undocumented immigrants rather than workplace raids, Immigration and Customs Enforcement recently announced that it has collected a total of roughly $561,171 against employers in three New England states during fiscal year 2012: Massachusetts, Connecticut, and Maine.

Individual fines paid by the employers ranged from a high of $151,200 to a low of $550.

The fines against 17 Massachusetts employers, 12 Connecticut employers, and eight Maine employers were the result of audits ICE conducted of their I-9 forms—the forms that every employer needs to fill out and retain a copy of for each of its new hires in order to make sure they are authorized to work in the United States. And ICE is making sure that employers know they’re on the hook for making sure they don’t hire undocumented workers.

In particular, ICE agents are looking for evidence of worker mistreatment as well as evidence of trafficking, smuggling, harboring, visa fraud, document fraud, money laundering, and other crimes. The agency also specifically said it will go after employers with indictments, arrests or search warrants, or commitments to prosecute from the U.S. attorney's office before arresting any undocumented workers.

Although the enforcement strategy dates back to 2009, it’s clear from the new data that ICE—at least in New England—is stepping up its investigation of employers. In Massachusetts, for example, the 35 audits conducted in FY 2012 is more than double the 17 ICE conducted in FY 2009.

Employers also should take note that they may need to take additional I-9 procedures in response to the deferred action for childhood arrivals (DACA) program.

Under U.S. Citizenship and Immigration Services guidance, DACA work permits count as “List A” documents proving identity and work authorization. Employers should complete a new I-9 for an existing employee whose name, date of birth, attestation, or Social Security number has changed—writing the original hire date in Section 2 and attaching the new form to the original. Employers should complete Section 3, the reverification section, for existing employees whose information hasn’t changed and who present a new work permit—provided that it looks genuine and relates to the employee presenting it.

In Other News:

• USCIS as of Nov. 15 has approved 53,273 DACA applications, a leap from the 29 approved as of mid-September. Since the program’s launch Aug. 15 USCIS has accepted 298,834 applications and rejected 10,101 for errors and omissions—although it still hasn’t released any data on denials on the merits.

• More and more voices on both sides of the aisle are calling for a comprehensive immigration bill next year, including President Obama, House Speaker John Boehner (R-Ohio), and Sens. Robert Menendez (D-N.J.) and John McCain (R-Ariz.). Sens. Charles Schumer (D-N.Y.) and Lindsey Graham (R-S.C.) also are teaming up again on a draft framework, resurrecting a partnership that fell apart in 2010 over border security concerns.

• Collecting $213,042 in back wages, the Labor Department settled with three firms involved in the employment of foreign students at a Palmyra, Pa., Hershey facility where they claimed to be earning as little as $1 per hour because of excessive housing costs. Conditions at the plant also spurred investigations by the DOL's Occupational Safety and Health Administration and the State Department, which subsequently rewrote its regulations on the Summer Work Travel Program to protect participants and reinforce that the program’s purpose is cultural exchange, not labor.

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