Criminal Warrants for Employers and the Risk of “Knowing” Hires

On April 3, Immigration and Customs Enforcement (ICE) issued a press release regarding its largest worksite enforcement action at one site in ten years against CVE Technology Group Inc. (CVE), a consumer electronics refurbishment and reverse logistics business, at its receiving center’s offices in Allen, Texas north of Dallas.  The action resulted in the arrest of 280 CVE employees based on allegations that they were unlawfully working in the United States (U.S.).  In addition, CVE was issued a criminal search warrant based on tips related to their alleged knowing hire of unauthorized workers and findings by ICE post an administrative Form I-9 audit of fraudulent identification documents used by the CVE employees to establish identity.

What should employers learn or note from this action?

  1. This action is an example of the announced focus of ICE back in July of 2018 regarding the criminal prosecution of employers who knowingly break the law, when the agency issued more than 5,200 Form I-9 audit notices to businesses across the U.S. in a two phase operation. During the second phase of the operation, Homeland Security Investigations (HSI)/ICE served 2,738 Notices of Inspection (NOIs) and made 32 arrests from July 16 to July 20, 2018.
  2. Companies and company management can be criminally prosecuted for the “knowing” hire or continuation of employment of unauthorized workers. See ICE press releases as to worksite enforcement for a history of actions. In the 2018 fiscal year ending September 30, 2018, 113 company management arrests were made for criminal violations regarding unauthorized workers.
  3. Under 8 CFR §274a.10(a) regarding criminal penalties, any person or entity engaging in a “pattern or practice” of knowingly hiring or continuing to employ unauthorized workers shall be fined not more than $3,000 for each unauthorized worker, imprisoned for not more than six months for the entire pattern or practice, or both.
  4. Criminal prosecutions may often be the result of tips received from the agency as well as due to government audits of Forms I-9. These Form I-9 audits may be conducted by the Department of Labor’s Wage and Hour division as well as by HSI/ICE.
  5. Enrollment in E-Verify can reduce the exposure of a business to some fraudulent document risks, because fake social security numbers, U.S. passports or passport cards, permanent resident cards, some driver’s licenses, and certain List A identity/employment authorization documents are verified through E-Verify use. Of course, if someone is assuming the identity of someone else with valid documents, E-Verify is not as useful except to provide a photo match for some documents for the employer to review.
  6. Conducting regular internal audits can help to reduce exposure to some unauthorized workforce risks as well as to Form I-9 related penalties.

What is a “knowing” hire of an unauthorized worker?

 Regulations define the term, knowing, to include not only “actual” knowledge, but also knowledge that may be fairly inferred through notice of certain facts and circumstances that would lead a person using “reasonable care” to know about certain conditions.   This type of “constructive” knowledge can also lead to “knowing” hire penalties. Examples of constructive knowledge are as follows:

  • An employer’s failure to complete or improperly complete the Form I-9 to determine employment eligibility.
  • An employer who has information that an employee is not authorized to work, such as the employee’s request for the filing of a labor certification and/or an application for immigration status.
  • An employer acting with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized worker into its workforce or to act on its behalf. (e.g., contracted worker via a staffing company).

Knowledge that an employee is unauthorized MAY NOT, however, be inferred from an employee’s foreign appearance or accent.   In addition, although employers will soon be receiving no match letters again from the Social Security Administration (SSA), the receipt of such a letter may not be used as the sole basis to terminate employment.

How can employers assist their employees subject to arrest?

 Employers should seek legal counsel regarding what assistance they should offer to detained employees. Certainly, employees are entitled to earned wages and they may need help in delivering personal belongings to family members from the worksite. In addition, although ICE should be releasing employees with minor children and family members needing assistance, family members may need information as to local legal aid services.  It is also important to remember that the identification of fake or fraudulent documentation by ICE does not negate the possibility that the employee may have acquired legal documentation allowing work eligibility.  For example, U.S. Citizenship and Immigration Services (USCIS) issued guidance to employers as to Deferred Action for Childhood Arrival (DACA) beneficiaries providing update documentation to their employers regarding identity or work authorization.  An excerpt from that guidance is inserted below and it specifically addresses completing a new I-9 Form when the employee’s name, social security number, or date of birth may have changed.  USCIS leaves it to the employer to address how it deals with prior fraudulent information provided by the employee, if they are now work authorized based on some change in immigration status.

When to Complete a New Form I-9 for Existing Employees

If any of the following information has changed in Section 1 of the previously completed Form I-9:

  • The employee’s name
  • Date of birth
  • Attestation
  • Social Security number, if a social security number was provided on the previously completed Form I-9

Then an employer should:

  • Complete a new Form I-9
  • Write the original hire date in Section 2
  • Attach the new Form I-9 to the previously completed Form I-9

About the Author:

Kathleen Campbell Walker is a member of Dickinson Wright PLLC and serves as a co-chair of the Immigration Practice Group. She is a former national president and general counsel of the American Immigration Lawyers Association (AILA) and is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.  She serves on the AILA Board of Governors.  In 2014, she received the AILA Founder’s Award, which is awarded from time to time to the person or entity, who has had the most substantial impact on the field of immigration law or policy in the preceding period (established 1950).  She has testified several times before Congress on matters of immigration policy and border security. She may be reached in our El Paso, TX office at 915-541-9360 and you may view Kathleen’s bio here.