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Immigration Enforcement by the Letter

July 2009

It was a chaotic scene. A year ago, 100 armed immigration agents stormed Micro Solutions Enterprises in Van Nuys. They forced all of the company’s workers and officers to stand against a wall as they checked them one by one. More than 100 suspected illegal immigrants were hauled into custody. The federal investigation into the company is still under way.
That was then. The Obama administration this month ushered in what promises to be a new era in immigration law enforcement, sending letters – not SWAT teams – to 652 U.S. firms suspected of possible immigration law violations. Under this new strategy, the government will target suspect companies through extensive audits of employee records, followed by fines and potential criminal liability if a company knowingly hired unlawful workers.
The Obama administration’s shift away from disruptive workplace raids is a welcome change that could set the stage for broader immigration reform. Still, under the new rules of engagement, Southland companies should be prepared for a potential onslaught of government audits.
As chair of the Immigration Section of the Los Angeles County Bar Association, and a practicing immigration attorney, I frequently field questions from employers seeking guidance on what to do with a valued employee with questionable immigration status. The Obama administration’s enforcement strategy will not resolve the difficult issues that arise in the hiring and retention of employees.
What the Obama strategy hopefully will do is prod a more civilized debate on immigration, by promising a more cooperative, collaborative approach to immigration enforcement issues. Witness as one prominent example how the administration handled its investigation of L.A.-based clothing manufacturer American Apparel Inc., which recently announced that it had complied with a government audit of its hiring records. Even though Immigration and Custom Enforcement’s audit found 1,800 employees with immigration problems, it appears that the company was able to work out a solution with the government that avoided an ugly raid and the bad publicity that would accompany it.
‘Holistic approach’
Charles Kuck, past president of the American Immigration Lawyers Association, called the Obama plan a more “holistic approach” to immigration enforcement.
“If you randomly start auditing companies, people are going to fall into compliance more readily,” Kuck predicted. “This needs to happen before we can get comprehensive immigration reform. It shows you can enforce the law and the law will be workable.”
L.A. attorney Catherine Haight, who assists employers facing government audits, echoed Kuck’s sentiments.
“If we really do enforce current laws, Middle America will be more accepting of legalizing the people who are here,” she said.
Administration officials have told the American Immigration Lawyers Association to expect a crackdown first on sensitive infrastructure industries, such as airlines, ports and rail companies, said the group’s president, Bernard Wolfsdorf.
Homeland Security plans to audit not just a parent company, but its subsidiaries as well.
So how should employers protect themselves? The best policy is for employers to keep accurate employee records, monitor the records frequently to check for employees whose immigration status expires and/or requires renewal, and train human resource employees on how to fill out the required Federal Employment Eligibility Verification Form, known as the “I-9” that documents a worker’s immigration status.
Employers also may want to consider signing up for “E-Verify,” a government sponsored, Internet-based system that runs employee information through Social Security and Department of Homeland Security databases. The free program, currently voluntary in California, attempts to verify employee work eligibility and identify false Social Security numbers. But one cautionary note: All of the companies audited so far are currently enrolled in E-Verify. Kuck speculated that the government may be mining the data for potential immigration violators.
Of course, as any Southland employer knows, following the rules isn’t always easy, given how difficult it can be to determine the authenticity of official documents.
Hopefully the Obama administration audits will stop the truly bad actors who deliberately exploit vulnerable workers, without penalizing employers trying in good faith to comply with immigration laws. It is the schizophrenic nature of our immigration policy that employees who face deportation one day may be on the path to a green card the next day. But I hope that’s where this policy is headed. With comprehensive immigration reform, employers and employees alike will be able to focus on their work, which after all, is what this is all about.
Pamela Hartman practices at the Law Offices of Pamela Hartman in Westwood.

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