3/12/08 3:00 PM

Federal Officials Increase Criminal Prosecutions for Hiring Illegal Aliens

By J.J. Smith

The federal government has increased criminal prosecutions for employing illegal aliens, an immigration lawyer said during a March 10 session of SHRM’s 2008 Employment Law & Legislative Conference in Washington, D.C.

Starting in December 2007, Immigration and Customs Enforcement (ICE) and the U.S. Attorney’s Office have made individuals who work for companies that employ illegal aliens the targets of criminal prosecutions, Cynthia Lange, a partner with Fragomen, Del Rey, Bernsen & Loewy LLP, told SHRM members. In a change in tactics, federal officials are not going after companies but are going after individuals who work for those firms “with a vengeance,” she said.

While there are a number of different criminal penalties that federal prosecutors might consider in a case related to the employment of illegal aliens, conspiracy is a charge that prosecutors are pursuing actively, Lange said. Conspiracy can be charged if there is a violation of the law somewhere and if more than two people are aware of the violation, she said. Even executives with companies that hire subcontractors in the hope of avoiding employing illegal aliens directly can be charged with conspiracy if they have any knowledge that a subcontractor employs illegal aliens, she said.

In addition to conspiracy, federal prosecutors are charging company officials with “harboring illegal aliens,” Lange said. The “harboring” charge was originally designed to be used against smugglers who transported illegal aliens, but creative prosecutors are now using it against employers, she said.

Targeting Executives

In all the cases in which Lange represented corporate executives charged with immigration violations, the executives did not suspect there was a government investigation until ICE “showed up at the door.” In many of the cases, confidential informants provided federal investigators with information on fraudulent documents used by a company’s employees, and the information provided by informants helped the officials decide which companies to investigate, she said. Because it is information that could lead to a criminal prosecution, fraudulent documents are not the biggest problem an employer faces in such a case, she said. The biggest problem is a “person wearing a wire” attempting to record incriminating statements, she added.

While there is no definitive way for company officials to know if the firm is under investigation for immigration violations, receiving a “no-match letter” from the Social Security Administration that says an employee’s Social Security number does not match government records might be a sign the company is being scrutinized, Lange said. If company officials receive a no-match letter, the firm needs to prepare for a Form I-9 audit “before ICE shows up,” she added.

Under government regulations, an employer that receives a no-match letter on an employee must take corrective steps or risk being found in violation of federal immigration laws. The first thing a firm’s HR department should do if it receives a no-match letter is schedule a meeting with the employee and document all actions taken with the employee, Lange said. The company needs to show ICE that it took “good faith” actions concerning the employee who was the subject of the no-match letter, she said. That way, if it turns out that the employee had provided fraudulent documents, it will probably not be a problem for the company because HR workers are not expected to be experts at detecting such documents, she said. In addition, while the federal government has not mandated that employers maintain copies of the identity credentials provided by employees, “the pendulum has clearly swung back toward maintaining photocopies of documents,” she said. If a company does keep copies of workers’ documents, the copies cannot be destroyed by a firm that suspects it will undergo a Form I-9 audit, she said. Some firms might destroy those copies in order to avoid a paperwork violation that could surface in an audit, but destroying such copies “is obstruction of justice,” she said.

J.J. Smith is manager of SHRM Online’s Global HR Focus Area.

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