Agriprocessors is a Case Study in Immigration Related Prosecution of HR Employees and Mid Level Supervisors

Agriprocessors, of Postville, Iowa, is a case study in the difficult web of immigration-related employer liability that can spread throughout a company.  The ICE raid occurred in May, 2008.  The company owner's first trial began this week.

The 99 count indictment alleges that the defendants committed some or all of the following crimes:  conspiracy to harbor undocumented aliens for profit, harboring and aiding and abetting the harboring of undocumented aliens for profit, conspiracy to commit document fraud, aiding and abetting document fraud, aiding and abetting aggravated identity theft, unlawful flight to avoid prosecution, bank fraud, false statements and reports to a bank, money laundering and aiding and abetting, and finally, willful violation of an order of the Secretary of Agriculture and aiding and abetting the same. 

Indictments were brought no only against the owner of the company, but charges were also brought against mid level HR employees and supervisors.  An HR employee or a supervisor at any level of a company deludes himself/herself if s/he believes that federal authorities are only interested in the big bosses.

A former HR employee was charged with conspiracy to harbor undocumented immigrants and harboring, aiding and abetting the harboring of undocumented aliens for profit. 

The saga began because an ICE investigation that indicated rampant IF fraud by almost 700 workers at the plant.

The ICE raid was the largest in history. The worksite enforcement action raid involved 16 local, state and federal agencies, led by U.S. Immigration and Customs Enforcement (ICE). The 300 workers arrested represent almost one-third of the plant's 968 workers

Typical of many worksite enforcement actions, the immigration-related violations that opened the door to the company resulted in numerous charges that are not immigration related.  The owner has been on federal bank fraud, state child labor violations and under a dusted off 1921 Meatpackers and Stockyards Act that no one can remember ever being used in a criminal action.

The mountains of documents both sides are combing through for discovery include: all Agriprocessors' personnel office files, 10 binders containing I-9 forms, 12 binders of grand jury testimony, electronic discovery that would equal 100 banker boxes if in paper form and at least 10 boxes of records on the bank fraud charges. 

The owner faces a total 163 charges and, if convicted, a maximum prison sentence of 1,995 years.

The more than 300 illegal workers served 5 months and were deported.

DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits. 

Employer failure to verify employment eligibility and properly complete and retain I-9 Forms subjects the company to stiff criminal and civil liabilities, including imprisonment, asset forfeiture, and treble damages in RICO (Racketeer Influenced and Corrupt Organization) lawsuits by competitors. Executives, officers, managers, supervisors and key employees, as well as accountants are personally liable for civil and criminal penalties for I-9 related errors and unlawful employment eligibility verification (EEV) practices.

I-9 compliance (and E-verify for registered employers, now including FAR federal contractors) require that employers verify all workers’ employment eligibility, or work authorization. Persons not authorized for employment, whether documented foreign nationals (or "illegal immigrants") generally do not have work authorization. The I-9 laws and the employment eligibility verification process restrict employment of illegal or undocumented immigrants and employment of persons who are not "employment authorized".

Employer liability extends to circumstantial evidence and “constructive knowledge”.
  It is unlawful to knowingly hire or continue to employ unauthorized workers. This I-9 process mandates accurate and timely completion of the Form I-9 by all U.S. employers and their employees.

"Knowingly hire" includes "constructive knowledge". The requisite employer's knowledge may be constructive knowledge when it may be fairly inferred through notice of certain facts which through exercise of reasonable care would lead a person to know about; or the employer deliberately fails to investigate such facts.

Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

Goulder Immigration Law Firm assists employers with Form I-9 consulting, including I-9 and employer sanctions compliance training, developing a company I-9 and employer sanctions compliance manual, and employment eligibility compliance auditing services.  Written I-9 compliance policies and a Form I-9 and employer sanctions law internal audit will help protect employers from government fines and criminal penalties and help ensure that all I-9 Forms comply with I-9 and employer sanctions laws. 

Gerald Goulder is a North Carolina immigration lawyer who practices exclusively immigration law for North Carolina clients and for clients throughout the United States, and the world.  Immigration law is a federal law practice not limited attorneys in a particular state.