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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.