As the 10th anniversary of the attacks of “9/11″ approaches, those of us who practice immigration law, in particular business immigration law, have seen substantial shifts in immigration enforcement at the worksite. Immediately following the attacks, Immigration and Customs Enforcement (ICE), the immigration enforcement component of the Department of Homeland Security (DHS), focused its attention almost exclusively on “critical infrastructure protection.”

Initiatives such as Operation Tarmac (airports) and Operation Glow Worm (power plants) reflect the agency’s national security priority in immigration enforcement. Over time, the Bush Administration also conducted raids against industries that traditionally have problems with unlawful employment, resulting in arrests of illegal laborers and charges of not only civil immigration violation but also criminal identity theft. The Obama administration changed the direction of worksite enforcement and shifted its focus onto the employers. Consequently, the number of audits and fines imposed against employers since 2009 has skyrocketed to unprecedented levels.

Reports of ICE activities have sensitized employers to the need for strict employment eligibility verification. However, the employers often forget about another side to their compliance obligations – that of avoiding immigration-related unfair employment practices.

On August 22, the Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”) slapped the highest fine ever against an employer for “discrimination.” The $290,400 whammy, far more than the previous record of $257,000 set in October 2010, was part of a settlement with Farmland Foods Inc., a major U.S. pork producer based in Kansas City.

So here’s the thing: OSC did not allege discriminatory malice—nor did it have to. Instead, according to the Justice Department’s press release, the pork producer’s sin was demanding more documents than the law requires from newly hired non-U.S. citizens during the employment eligibility verification (I-9) process. This case follows numerous others brought against a wide range of employers for similar conduct, from a nonprofit hospital for low income patients in California to a community college system in Arizona.

The unfortunate common theme in all of these cases is that the employers could have easily avoided the costly fines. OSC, by law, only needs to show “disparate treatment” during the employment verification process to bring its cases. Consequently, the employers’ action in demanding more documents than necessary because of one’s citizenship status was enough to support the imposition of the penalties. To avoid this pitfall, the employer just needs to train its human resources staff to look only at the appropriate documentary requirements, printed on the back of every I-9 form, and not to ask for anything else – regardless of citizenship status of the employees.

The latest OSC action is a stark reminder that proper I-9 audit and training, including anti-discrimination training, is an integral part of every corporate compliance program. Just as DHS is stepping up its enforcement efforts, OSC does not appear to be slowing down either. It is a fine line to walk between Homeland Security’s and OSC’s enforcement interests. But with proper training, employers attempting to comply with all the laws won’t need to write such big checks in the future.

  • Never will we get a straight truth
    from Democrats who believe our borders should remain open? Neither have we got
    the specifics from the Liberal oriented media. So many articles are missed by
    the general public, because the Leftist press chooses to blackout different
    factual articles, as it would add ammunition to securing the border. For
    instance according to an “American Patrol” in today’s report, that on
    June 18, 2010, Arizona Republican Senator Jon Kyl told the audience at a North
    Phoenix Tea Party town hall meeting that during a private, one-on-one meeting
    with President Obama in the Oval Office, the President told him, regarding
    securing the southern border with Mexico, “The problem is… if we
    secure the border, then you all won’t have any reason to support ‘comprehensive
    immigration reform.'” There is a video of Senator Kyl saying exactly
    these words at the TEA Party convention at “Vision for American”


    I have found that many websites
    frown on web addresses, but you can locate these very serious information
    articles at American Patrol, NumbersUSA and the conservative legal website
    Judicial Watch, by typing these web sites into Google. The websites don’t pull
    punches and are very explicit in intelligence on illegal immigration and other
    political news not revealed in the Liberal predisposed news reports. These
    articles in the majority of cases are backed by hard facts, such as the Los
    Angeles Times ignoring the report about the tunnel under our Southern Border.
    Its, Liberal bias runs parallel to the Arizona Republic. This media are not
    separate on the belief, that the way between Mexico and our sovereign nation
    should be wide open. They are citing that because of these tunnels under our
    border, is sufficient evidence that the fence doesn’t work. The fact is it does
    work? Otherwise they wouldn’t build tunnels?

     If the border fence was constructed according to Rep. Duncan Hunter’s
    design of two parallel fences with roads and watchtowers, in between, adorning
    the two thousand miles with concertina razor wire.  This would stop the
    invasion by economic aliens from across the border. Trouble is the fence
    remains open in so many areas covering hundreds of miles. Deployment of 5000
    National Guard along the fencing would halt for good these everyday incursions
    into our country. Not only would it would dissuade thousands turning up every
    month, including females pregnant; intentionally entering America to have free
    reign to our welfare programs for citizens. Taxpayers could begin to save
    billions of dollars in the educational, health care and prisons, all
    overcrowded with illegal aliens. Mexico is saying that the influx of their
    native-born has dwindled, but when the actual Mexico cities politicians handed
    out guide book to slip past the US Border Patrol, who are you inclined to
    believe? In any case we are already supporting 20 million plus alien foreigners
    from across the world. A government National ID card could put an end to the illegal
    immigration occupation.


    In the political pit that is the Senate and Congress, you cannot expect to
    close the loopholes in immigration, as the Democrats driven by the Liberals
    want future votes. Then the Republican establishment likes the unceasing flow
    of migrants for cheap slave labor, so they don’t have to pay a full measure of
    pay and benefits to Citizens and legal residents. It is the same with the farms
    and mega agricultural acreage. Cheap labor in the fields, service industries,
    manufacturing, and construction want no changes to the laws. They
    certainly don’t want the 1986 Immigration laws enforced, because none of them
    could exploit the millions already here or those who are encouraged to come
    here across borders or through an aircraft terminal. Our immigration policies
    are a mess, because they are not enforced. That why America has a yearly
    deficit of 113 billion dollars and no politician has placed a bill on the table
    to halt the $46 Billion dollars a year going to other foreign lands in illegal
    worker allotments. That $113 billion dollars is not going to remain the same
    forever, but it rising every year to new heights.


    Behind all these illegal immigration issues and the open border agenda is
    money. It’s just plain greed spawned by both parties. The majorities of
    lawmakers are not interested in the American people’s rights, interests or
    will. But it’s in the people’s interest to restrain these legislators who would
    approve another ugly mass amnesty. We cannot afford another Immigration Reform
    package from either party, as we have already been bled to a husk by those
    already illegally settled here. Just think the political high echelon already
    served us on a plate, to raise the $14.6 Trillion debt ceiling to a new high,
    by another $2.Trillion dollars. In California, a Sanctuary State they are ready
    to close down 70 State parks, but the Liberal Governor Jerry Brown thinks
    nothing of pushing forward with a State Dream Act. Another cost for this ailing
    State one way or another, when they are trying to cut down on their impossible
    deficit of $26 Billion dollar.


    It only makes sense to give the TEA PARTY leadership a chance to resolve what’s
    wrong with America. The TEA PARTY could not do any worse than the majority of
    corrupt fools running in office now? My point of view is people like
    Billionaire Donald Trump, Michele Bachman or Herman Cain, have straight
    forward idea to resurrect America from the organized-chaos that is Washington.
    Rick Perry has a poor thought process on illegal immigration, as he thinks we
    should graduate to another amnesty. The 1986 Immigration Control and Reform Act
    didn’t work, so another move towards a Congressional bill would be a travesty;
    played on the American people. The TEA PARTY will return empowerment to the people
    and each individual State, such as education. It will end strong armed agencies
    as the (EPA) Environmental Protection Agency that is killing jobs, with too
    many regulations.


    We need a moratorium on all
    regulations, to give thousands of companies’ breathing space such as the Coal
    industry. Coal supplies much of our energy to our communities, but many are
    closing down because of the immense pressure from regulatory controls.
     The Department of IN-Justice seems to have the federal courts in their
    pockets, so immigration laws are carefully engineered to undermine the policing
    laws enacted in Arizona, Georgia and Alabama. There are millions of

    Americans without jobs that are angry and frustrated with the
    political ideology, that the government has inept in closing the borders or
    enforcing immigration laws, but are covering up this fact by going after states
    who are floundering in unfunded mandates for entitlement payments to illegal
    aliens and their children. Suddenly Napolitano, Secretary for Homeland Security
    is pushing for E-Verify? What a quick change of clothes. This is BS! Obama
    changes his mind from deporting illegal aliens, now it’s going to be discretionary?
    At least we know that “Secure Communities” is going to be mandatory or is it..?


    Just make it a—FELONY—for entering America, unlawfully. Put
    them all in Arizona’s Joseph
    M. Arpaio
    tent city prison as that will change anybody coming here

    I happened to find this commentary
    that really sums up the problem with illegal immigration in a website

    We are persistently told that
    ILLEGAL ALIENS “are just here to work”, but at the same time told
    that “they only take jobs Americans wouldn’t do anyway.” Hogwash! The
    ironic thing is just WHOSE jobs they’ve actually taken. ILLEGALS now occupy
    most of the unskilled entry-level jobs that inner-city youths used to start out
    with. All the Construction, Light Manufacturing, and Agriculture jobs that
    poorly-educated Blacks (and Whites) used to gravitate to have been taken over
    by Illegal’s. They have literally crowded out independent Union contractors and
    craftsmen in the building trades – I personally know two roofers and a
    drywall’s who each closed their businesses after being continually underbid by
    unlicensed, non-union Illegal’s. They could not pay all their taxes,
    insurances, licensing fees, and union dues, and still compete with an Illegal
    who has no more business overhead than the tools in his toolbox. Illegal’s all
    work “under the table”, so they don’t pay ANY of those overhead
    costs, so they can always afford to underbid a dues-paying, licensed craftsman.
    I say its “ironic” whose jobs they steal, because two of Mr. Obama’s
    strongest supporters are Blacks and Union members, and they are PRECISELY the
    two groups his Administration’s immigration policies are screwing over the
    most, all in hopes of bringing in more lifetime Democrats.


    So everybody who cares about
    America’s economy and future should join their local or the central Tea party.
    Locate your federal, State and community representative and ask them directly
    their stance on this very expensive issue, which influences all our taxation.

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