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Immigration
Law Compliance Programs
Problem : For years, Congress
busily legislated the field of immigration law. Laws such as The Illegal
Control and Reform Act ("IRCA") were supposed to stop illegal immigration.
They did not. Instead, without many in the business community paying much
attention, IRCA and subsequent immigration laws now apply to all U.S. businesses,
big or small, whether such businesses employ immigrant workers or not.
IRCA sanctions for inappropriately filled out I-9 forms for any employee,
even American-born, are common, as I-9 instructions frequently change without
notice. Employers across the country are puzzled, if not shocked, by the
federal criminal indictment and employees' class actions law suites that
WalMart is facing as a result of allegedly employing workers or contractors
without authorization. Many, like WalMart, are simply not aware of recent
developments in US immigration law. Our statutes together with recent case
law exposes businesses to criminal and civil liability based on alleged
violations of immigration law. Press releases issued by the company show
that WalMart was not aware that the company could be held liable under
RICO for alleged immigration-based violations, but see Commercial Cleaning
v. Colin case. WalMart spokeswoman said that the unauthorized workers were
contractors rather than employees. However, this does not absolve the company
from under RICO, see Mendoza vs. Zircle Fruit Company case, and that they
can be sued by their own workers for the alleged violations. All executives,
managers and HR professionals should either read those cases or at least
read a copy of the article I wrote for the Kansas Bar Association's 2003
Annual Employment Law Institute, to save time (Lawyers reading this should
not cheat and should actually read the cases!) It is also noteworthy that
while President Bush new immigration proposals unveiled in January 2004
acknowledges that undocumented workers are a vital part of our economy,
and businesses should be allowed to employ them legally, he said at the
same time that enforcement against businesses that do not comply with immigration
law would be stepped up.
Solution : If you company becomes a target of a similar investigation,
what are your defenses? You could do what WalMart did and declare after the law
suits are filed, that you are going to do an I-9 audit of all your employees
(in case of Wal-Mart, 1.1 million workers). If you ask any experienced immigration
lawyer, this is too much and too late. The solution we offer to our clients are
company-wide, well thought of, and continuously revised immigration law compliance
programs. Such programs include recurrent Executive, Management and HR Personnel
training on immigration issues, I-9 audits of representative samples of the company
workforce, revision of contracts with all contractors to include language to
certify that such contractors comply with immigration law, indemnification provision
if they fail to do so, and other necessary efforts appropriate for a specific
client. If you have questions about what kind of an immigration law compliance
program may be appropriate for your company, please contact immigration attorney
Mira Mdivani at (913) 317-6200. |