ICE Enforces I-9 Employment Eligibility Verification “Culture of Compliance” with Civil and Criminal Charges Against Ohio Mexican Restaurant Operator

The owner of eight Casa Fiesta restaurants Ohio has been charged by the Department of Justice with eight counts of harboring and concealing illegal aliens, three counts of mail fraud and seven counts of subscribing to a false tax return stemming from July 2008 raids by federal agencies.  Ramon Ornelas of Norwalk, Ohio, owned Casa Fiesta restaurants in Youngstown, Vermilion, Ashland, Norwalk, Fremont, Oberlin, Oregon and Sandusky.

The Mexican restaurants were raided July 23, 2008, which resulted in the arrests of 58 undocumented Mexican employees. All 58 arrested have either been deported or will be deported. The federal government alleges Ornelas employed undocumented workers, failed to obtain proper immigration documents and sometimes provided them places to live.  The information states that Ornelas routinely paid workers in cash without withholding FICA and Medicare taxes and submitted falsified documents to the state Department of Job and Family Services.

The Bureau of Immigration and Customs Enforcement, the IRS Criminal Investigation Division and the U.S. Department of Labor and the Office of Inspector General were involved in the investigation.

"These criminal charges represent (U.S. Immigration and Customs Enforcement)'s firm commitment to holding employers accountable for brazenly ignoring immigration laws as it relates to their work force," said John Morton, Department of Homeland Security assistant secretary for immigration and customs enforcement. "In order to create a culture of compliance among businesses, ICE will take the necessary actions, including leveling both criminal and civil fines against employers."

Gerald Goulder is a North Carolina immigration lawyer with clients throughout the United States and the world.  His services assist employers develop recommended Forms I-9 compliance procedures and practices, and avoid substantial civil and criminal penalties that may be assessed for I-9 employment eligibility violations. His services include training company personnel on properly completing and retaining Forms I-9, creating company policies and procedures for all aspects of proper Form I-9 compliance, and conducting internal company I-9 audits of its Forms I-9.  His I-9 and worksite enforcement blog and I-9 employment eligibility verification website provide the most authoritative and extensive information on the Internet concerning Form I-9 compliance and employer sanctions laws. Contact Gerald Goulder through his websites (www.gouldervisa.com or www.I-9employmenteligibility.com) or by phone at 1-866-US VISAS.

Comments On the Comprehensive Immigration Reform debate

This blog focuses on the Form I-9 employment eligibility verification process, employer I-9 employment eligibility verification compliance practices, and ICE enforcement of I-9 employer violations and employer sanctions.

I appreciate all visitors to my blog.  I encourage and invite your comments.  However, please understand the I-9 employment eligibility verification blog is NOT a forum for comprehensive immigration reform (CIR) debate.

The blog is about existing I-9 employment eligibility verification law and employer sanctions compliance.  It is an area of immigration law that I practice. The I-9 compliance is part of my immigration law practice. I have no position per se on one side or the other in the comprehensive immigration reform debate.  I do, however, have opinions of particular aspects of the debate and legislation.

Comprehensive immigration reform has become a difficult matter to discuss.  The CIR bills introduced in Congress are very long, complicated and often difficult to understand.

There are many forums on the Internet for the discussion of “illegal aliens”, “illegal immigrants” or “undocumented immigrants”; as variously labeled based on one’s position. I welcome your comments, but please offer your comments on the I-9 employment eligibility verification process and employer compliance aspects of immigration law and policy. Thank you.

The Comprehensive Immigration Reform Act in 1986

The 1986 Comprehensive Immigration Reform—A Short Review

The Immigration Reform and Control Act of 1986 (IRCA) [Public Law 99-603] secured legal immigration status for 2.7 million illegal aliens. IRCA was an omnibus or comprehensive immigration reform law—an attempt to form a grand bargain that resolve many immigration policy disputes.

History of prior comprehensive immigration reform acts may help anchor us in our on-going comprehensive immigration reform debate a little more than 20 years later.

The 1986 comprehensive immigration reform included “employer sanctions” for knowingly employing unauthorized workers, principally illegal aliens (the Form I-9 employment eligibility verification laws). 

The second aspect of the 1986 comprehensive immigration reform legislation was the legalization package. The promise of the 1986 comprehensive immigration reform act was that employer sanctions would eliminate the lure of jobs in the U.S. economy, thus ending the reason for illegal aliens entering the U.S; and the legalization package put several important groups of illegal aliens on the path to citizenship. 

The 1986 comprehensive immigration reform act was intended to thus both shrink the size of the current and future illegal populations.

IRCA included four separate legalization programs within its 100 pages, which at the time was a rather large amount of pages.

Two of the IRCA legalization programs involved an extremely narrow focus that drew a few thousand applicants. The Registry program gave legal status to long-term illegal aliens who could document their presence in the U.S. since January 1, 1972. Another narrow class of illegal aliens granted legalization under IRCA was Cubans who entered illegally during the Cuban Mariel crisis, and Haitians who took advantage of the Mariel opportunity.

The major legalization program of the comprehensive immigration reform act of 1986 (IRCA) amended the Immigration and Naturalization Act adding Section 245A providing legal status to aliens who: a) applied between May 5, 1987, and May 4, 1988; b) had been in the country continuously since January 1, 1982; c) who did not have serious criminal records; and, d) who met some other stipulations. 1,763,434 aliens applied under Section 245A.

The other major legalization program in the 1986 comprehensive immigration reform act included the Special Agricultural Worker (SAW) program providing legal status to aliens who had done seasonal farm work in the United States for at least 90 days in 1984, 1985, or 1986, and who applied between June 1, 1987, and November 30, 1988. The SAW legalization drew 1,277,041 applicants.

SAW and the pre-1982 programs created a new legal immigration status “Temporary Resident Aliens” (TRAs), a step toward green card or permanent residence status.  Temporary Resident Aliens had limited access to government-funded programs, and they could not use the TRA status to sponsor more immigrants into the U.S.

The House of Representatives and the agricultural growers’ lobby made an issue to porvide farm workers an easier path to legalization. SAWs could legalize based on much shorter stays in the United States and had a longer period during which to apply for legalization. The SAWs, unlike the pre-1982s, did not have to meet any English-speaking or civics requirements to secure a “green card”.  In some circumstances SAWs could apply from outside the U.S. and their transition from TRA status to green card status was automatic, which was not the case for the pre-1982s.

The comprehensive immigration reform in 1986, which was intended to resolve illegal alien circumstances, legalized about 2.7 million persons, and required, generally five years presence in the U.S. with no serious criminal record.

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

I-9 compliance (and E-Verify for registered employers, now including certain federal contractors (FAR), 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 failure to verify employment eligibility and properly complete and retain I-9 Forms. I-9 employer employment verification laws are enforced by the Immigration and Customs Enforcement (ICE) and ICE enforcement policy now targets employers. I-9 employer sanctions subject the company to stiff I-9 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.

Employer, executive, manager and supervisor liability is based on knowingly hiring or continuing to employ unauthorized workers. Employer liability extends to circumstantial evidence and “constructive knowledge”.
 The I-9 process mandates accurate and timely completion of the Form I-9 by all U.S. employers and their employees.

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.  The web's most authoritative source for Form I-9 compliance information is www.I-9employmenteligibility.com.

Gerald Goulder is a North Carolina immigration lawyer with clients throughout the United States and the world.  His services assist employers develop recommended Forms I-9 compliance procedures and practices, and avoid substantial civil and criminal penalties that may be assessed for I-9 employment eligibility violations. His services include training company personnel on properly completing and retaining Forms I-9, creating company policies and procedures for all aspects of proper Form I-9 compliance, and conducting internal company I-9 audits of its Forms I-9.  His I-9 and worksite enforcement blog and I-9 employment eligibility verification website provide the most authoritative and extensive information on the Internet concerning Form I-9 compliance and employer sanctions laws. Contact Gerald Goulder through his websites (www.gouldervisa.com or www.I-9employmenteligibility.com) or by phone at 1-866-US VISAS.

Social Security Administration Fails to Use E-Verify in Violation of Law

And now for something entirely different…


The Social Security Administration (SSA) operates the E-Verify system with the Department of Homeland Security (DHS).  The SSA is required by law to use E-Verify. (As are certain federal contractors pursuant to the FAR E-Verify Regulations.)

This month the SSA Inspector General released a report stating the SSA failed to use E-Verify for 20% of their new hires.  Perhaps an even more devastating concern I that the SSA improperly ran checks on 169 volunteers and individuals who had not yet been hired; a plain violation of the law and a fundamental condition of participation in the E-Verify program.  Furthermore, the report states the SSA also violated E-Verify rules with respect to the timing of its verifications 49 percent of the time.

Heads need to roll.  Jobs need to be lost.  Bureaucratic incompetence by the SSA, which is a fundamental component of the E-Verify database, is horrific indictment of the critical and highly important E-Verify program.

Certain federal contractors are required to participate in E-Verify.  These contractors would be sanctioned for the kind of violations of law evidenced by the SSA.

Private employers who violate I-9 employment eligibility verification procedures are subject to criminal and civil liability.  Private employers are responsible for training their I-9 managers.

It is absurd for ICE to prosecute private employers for violating E-Verify and I-9 employment eligibility verification requirements but allow federal government and SSA supervisors and managers to skate.

DHS/ICE enforcement of I-9 and employer sanctions laws 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 I-9 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. 

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.  The web's most authoritative source for Form I-9 compliance information is www.I-9employmenteligibility.com. 

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. Contact Gerald Goulder through his authoritative website www.gouldervisa.com or by calling toll free 1-866-US VISAS.

ICE Drives Undocumented Aliens to Work Knowing They Are Not Authorized for Employment

{I recently updated this story with more interesting information--January 20, 2010}

DOH! ICE drove illegal workers—unauthorized for employment—some of whom were underage, to shovel snow for a New England Patriots game!  Say it isn’t so!

ICE driving unauthorized (and underage) workers to work is astonishing enough.  It is over the top that the New England Patriots of the National Football League and Gillette Stadium do not use standard sound business practices with their subcontractors for Form I-9 and employment eligibility verification.  NFL football executives and teams are civilly and criminally liable for I-9 violations.  They should be replaced for their negligence alone.

You won’t learn about this from ICE or the companies involved of the Department of Homeland Security enforcement news.  We learn about it from the Providence Journal who reported that ICE agents detained workers last Wednesday on Route 1 in Foxboro as they rode in vans from Providence to Gillette Stadium to clear snow for the New England Patriots.

Forty-nine of the 60 people stopped by U.S. Immigration and Customs Enforcement agents were released after being processed at the Foxboro police station, because they had no evident criminal records or outstanding deportation orders.

The Journal report says, “Foxboro Police Chief Edward O’Leary said ICE agents drove released workers to Gillette in the vans they were stopped in, because some of the drivers lacked licenses. The workers then shoveled the snow.” Six of the unauthorized workers are minors 14, 16 and 17 years old.

This is astonishing. ICE drives undocumented aliens to work because they lacked driver licenses; after determining they were unauthorized for work and under age!!

The New England Patriots and Gillette Stadium are also clueless. Talk about questionably negligent management practices.  These companies and their executives and managers could face criminal and civil liability if they had constructive knowledge of their subcontractor’s employment eligibility verification and I-9 practices and violations—assuming, in Boston, ICE prosecutes employers for I-9 and employment eligibility verification violations.

[It raises an interesting 14^th Amendment defense for employers elsewhere in the United States who have been prosecuted for constructive knowledge I-9 violations based on the Equal Protection Clause.]

Seven of the people stopped by ICE remain in federal custody including people targeted as fugitives from deportation. A total of 56 workers were being brought to work by the Patriots’ subcontractor.  The Patriots have used subcontractors before to remove snow and clean up the stadium.  Maybe it is possible they had no idea any of these workers were unauthorized for employment.

DHS/ICE enforcement of I-9 and employer sanctions laws 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 I-9 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.

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.  The web's most authoritative source for Form I-9 compliance information is www.I-9employmenteligibility.com.

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. Contact Gerald Goulder through his authoritative website www.gouldervisa.com or by calling toll free 1-866-US VISAS.

Summary of New State and Local E-Verify Laws Effective January 1, 2010

South Carolina: Presently, the South Carolina Illegal Immigration Reform Act requires all employers with 100 employees or more to participate in E-Verify or only hire employees who possess or qualify for a South Carolina driver’s license (or other state license with similarly strict requirements). Effective January 1, 2010, the law expands and includes all state contractors, regardless of size. Effective July 1, 2010, the law will increase coverage to all employers.

Illinois: Effective January 1, 2010, Illinois places significant new state-level obligations on employers who use the federal E-Verify program to check the identity and work authorization of their employees. Although the statute is consistent with federal E-Verify requirements in certain areas, it goes well beyond the federal provisions in others.

Under the new law, which amends the Illinois Right to Privacy in the Workplace Act, Illinois employers are required to sign a sworn attestation either upon initial enrollment in E-Verify, or by January 31, 2010 if they are already enrolled in the program. An official E-Verify attestation form provided by the Illinois Department of Labor (“IDOL”) is available for employers to use. The attestation form affirms that the employer has received the requisite E-Verify training materials from the U.S. Department of Homeland Security (“DHS”), and that all employees with access to the company’s E-Verify account have completed mandatory online E‑Verify tutorials. It further states that the employer has posted the required legal notices regarding its enrollment in E-Verify and certain non-discrimination procedures. The employer must retain the signed original attestation and proof of its employees’ E-Verify training.

The Illinois law also details a number of prohibited actions, the knowing and willful violation of which can result in significant company fines and petty offense charges for executives and HR managers. The following actions are prohibited:

1.             Failing to display the appropriate E-Verify related notices.

2.             Allowing an untrained employee to use the E-Verify system.

3.             Failing to take reasonable steps to prevent an employee from using another's login and password in lieu of completing his or her own E-Verify tutorial with the DHS.

4.             Using E-Verify on an applicant prior to hiring, or prior to completing the Form I-9 process.

5.             Terminating or otherwise taking adverse action against an employee prior to a receiving a Final Non-Confirmation (for E-Verify related reasons).

6.             Failing to notify an employee in writing of a Tentative Non-Confirmation and his or her right to contest it.

7.             Failing to safeguard the information contained in the E-Verify database and the means of access to it (passwords, etc.).

The statute gives injured employees a private right of action in state court after first seeking redress with the IDOL.

Georgia: On January 1, 2010, public employers (city, municipality and county), contractors and subcontractors will be required to post their federally issued E-Verify user identification number and date of authorization to use E-Verify on their website. Covered cities that do not maintain a website must annually publish the identification number and date of authorization in the legal organ for the county.

Lancaster, CA: Beginning January 1, 2010, businesses operating in the City of Lancaster, California are required to use E-Verify for all new hires and employers that hire unauthorized workers may have their business licenses revoked. 

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.

Gerald Goulder is a North Carolina immigration lawyer with clients throughout the United States and the world.  His services assist employers develop recommended Forms I-9 compliance procedures and practices, and avoid substantial civil and criminal penalties that may be assessed for I-9 employment eligibility violations. His services include training company personnel on properly completing and retaining Forms I-9, creating company policies and procedures for all aspects of proper Form I-9 compliance, and conducting internal company I-9 audits of its Forms I-9.  His I-9 and worksite enforcement blog and I-9 employment eligibility verification website provide the most authoritative and extensive information on the Internet concerning Form I-9 compliance and employer sanctions laws. Contact Gerald Goulder through his websites (www.gouldervisa.com or www.I-9employmenteligibility.com) or by phone at 1-866-US VISAS.

DOJ and ICE REACH $4.5 MILLION AGREEMENT WITH PILGRIM'S PRIDE

Immigration and Customs Enforcement (ICE) announced December 30 that ICE and Pilgrim’s Pride reached a non-prosecution agreement to resolve an investigation with respect to the hiring and employment of unauthorized aliens at Pilgrim's Pride's plants in the Eastern District of Texas. Under the terms of the agreement, Pilgrim's Pride agrees to pay $4.5 million and adopt more stringent immigration compliance practices to ensure that its work force is composed of employees legally entitled to work in the United States. In return, the U. S. Attorney's Office agrees to conclude its immigration-related investigation of Pilgrim's Pride and any current or former employees that began in 2007.  Pilgrim’s Pride will pay the settlement fine over the next three years.

In a factual statement accompanying the agreement, the parties acknowledge that at the beginning of the investigation, U.S. Immigration and Customs Enforcement (ICE) had reason to believe that a substantial number of unauthorized aliens were employed at several Pilgrim's Pride plants. As part of that investigation, twenty-five unauthorized aliens were arrested in the Eastern District of Texas in December 2007 and charged with misuse of a Social Security Account number. In early 2008, a number of worksite enforcement actions were conducted by ICE at five Pilgrim's Pride plants in Texas, Florida, West Virginia, Arkansas, and Tennessee, resulting in the apprehension of approximately 338 unauthorized aliens. Thirty-eight illegal aliens were convicted in the Eastern District of Texas for misuse of a Social Security Account number.

At the time of the arrests, Pilgrim's Pride said the employees taken into custody represented about 4% of its work force at the facilities, which included its plants in Batesville, Ark.; Chattanooga, Tenn.; Live Oak, Fla.; Morefield, W.Va.; and Mt. Pleasant, Texas. The company said it terminated all employees who were arrested and would terminate employees found to have engaged in similar misconduct.

As part of the settlement, Pilgrim's Pride agreed to enhance its compliance programs to more accurately identify unauthorized persons who seek or gain employment through identity fraud.

The company said no criminal or civil charges were ever filed against it during the investigation. It added the settlement didn't constitute any admission of misconduct on the part of the company or its executives.

The news comes two days after Pilgrim's Pride announced it had emerged from Chapter 11 bankruptcy, completing a 13-month restructuring. The company and other meatpackers have been hurt by weak demand, partially due to woes at recession-hit restaurants, and have closed plants.