When most Americans hear about immigration policy or “undocumented workers,” a debate of some sort generally ensues. “They do the work most American’s won’t do,” you hear, or, “these are good people who have come here just to do their best for their families.”
The debate is mostly framed by perceptions promoted by the media, who love running video of those flack-jacketed agents with the three, large yellow letters – “ICE” – on their backs; breaking down doors, rounding up poor, frightened innocent workers. Surely, in a civilized society, this “savage brutality,” is uncalled for!
What most people in America don’t realize is that these agents are patriots of the highest order, standing on the front lines of America’s war on terror. The cowardly animals that struck our nation on 9/11 worked in the shadows—their first order of their murderous business being to “blend in” to society; working alongside other “citizens.”
Under the umbrella agency of the Department of Homeland Security (DHS), is the agency known as Immigration and Customs Enforcement (ICE). Both agencies have taken an aggressive, proactive stance at going after those who would harm us. Now, more than ever, the cross-hair focus of that effort has been placed squarely on business owners and employers. Every type and size company across America is affected, and all must pay careful attention to their increasing responsibilities regarding compliance with employment law.
The following is an exclusive interview I conducted with a recently retired, senior special agent with the Department of Immigration and Customs Enforcement. While none of the information he shared is classified, we are keeping his identity confidential.
ALIVE: What is or was your role/position within the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE)?
ICEMAN: For the last five years I was a coordinator for the IMAGE (Ice Mutual Agreement between Government and Employers) unit of the agency. There are twenty-six plus coordinator positions throughout the nation. I oversaw programs that deal with worksite enforcement. Prior to that position, I worked in the Arms and Strategic Technology Division, and also in departments relating to organized crime and gangs.
ALIVE: What was your job function as an IMAGE Coordinator?
ICEMAN: Image coordinators are responsible for building relationships with employers in a proactive, non-adversarial way, as opposed to the criminal and administrative fine section of the agency. Post 9/11, when DHS and ICE were formed, the government looked at implementing a program that would work alongside employers who were not purposely engaged in criminal activity or violating the law—those employers that want to do the right thing. My role was working hand-in-hand with employers, setting up training for them on audits involving I-9 forms, labor and discrimination—basically all areas that involve the hiring of individuals in the workplace.
ALIVE: So it’s kind of the “carrot and the stick” scenario—you worked on the carrot side of things?
ICEMAN: Pretty much. The thought process behind the IMAGE program was to get employers thinking in the right frame of mind—doing the right things first—then by setting that example, within their respective industries, they would show their peers within their industry that it really isn’t that difficult to do and in doing so they would avoid any penalties, administrative fines or criminal prosecution from the government, whereas if employers don’t take it upon themselves to learn and train and develop a compliance program within their workforce, then the government really gives no “free breaks” on that and can come down pretty hard. If an audit is conducted on someone’s business or company, the employer could face the full brunt of that audit. Sometimes these audits now result in hundreds of thousands of dollars or more in fines. Just for a couple of example, over the past several years, Walmart was fined $12.5 million in an audit case; Swift Meat Packing out of Texas was fined millions of dollars. Sometimes these cases involve criminal activity.
It’s pretty powerful that now the government can come in and conduct an I-9 audit, just like an IRS audit, and levy serious fines and penalties against even a very small company—one with only six or seven employees for example—and end up levying fines in the hundreds of thousands of dollars. In today’s economy, that’s pretty hard to take. It usually ends up meaning that’s the end of that business.
ALIVE: I’m familiar with the I-9 form, but it sounds like everything drastically changed after 9/11, true?
ICEMAN: Absolutely. When I started with the Immigration and Naturalization Service (INS) in 1988, that agency had oversight of the I-9 form and compliance issues in the workplace. Prior to 9/11, there was not a lot of emphasis on making sure that employers were following the law. I don’t know the exact numbers, but I would estimate that before 9/11, out of each of the 26 district office, only about ten or twelve audits were conducted per office per year. Now, as a part of DHS, each office is conducting 200 to 300 audits per office per year. And that number is increasing every year.
The reason for this is, the 9/11 commission revealed that all of the 9/11 terrorists were all shown to have been working as part of the workforce in the United States. Many of them had fraudulent identity documents—driver’s licenses, passports, and social security cards—the types of documents that would enable someone to work in the United States. In fact, I believe that 26 different terrorists that had fraudulent identification that they used to obtain employment in day to day jobs so that they could blend in with the rest of the community while they were learning their “trade” to commit terrorism—one being in Arizona where they were learning how to fly airplanes.
We looked at that and said, ‘We’ve already got a law in place that congress enacted in 1986 called the Immigration Reform and Control Act (IRCA). That law mandated that all employers, no matter what, verify the work eligibility and identity of employees. That’s when the I-9 form was created. The law said that an I-9 form is to be maintained by all workers within the United States. It doesn’t apply to contractors, but if you are an employee, the employer must maintain that document.
So, the 9/11 Commission looked at this and realized that they could not only enforce the laws that are on the books, they could create a ‘choke point’ and make it tougher for terrorists to maintain a secret lifestyle anywhere in the United States. They can’t work and can’t maintain a hiding place within the community. This is just one way that DHS cracked down on the terrorists. So after 9/11, the DHS and ICE really stepped up an aggressive worksite compliance and enforcement program.
ALIVE: I can see that this is a major way to impede terrorists. But obviously there are limited resources. I assume that ICE works on companies on a priority basis, from biggest, on down?
ICEMAN: There are classifications of priorities and the department itself, DHS, classifies certain industries and different types of employers and assigns them a security risk level. For instance, right after 9/11, if you remember one of the first things that we cracked-down on was airports because we knew that was a vulnerable spot—they had already used airports as a means to commit terrorism. The agency looked at that as what is considered a critical infrastructure location. These are the number one locations we try to protect—locations like airports, nuclear power plants, water treatment facilities, food processing plants; any place that could have a major impact on large populations in the United States. Places like railway stations, railroads, subways, bridges and National landmark locations and national events like the Super Bowl. These were the types of things that were audited and investigated first.
After critical infrastructure and high profile, large events, they then looked at what the DHS considers high impact or places of know activity, where it was known as a type of business or industry that it was known traditionally employees unauthorized workers. They also looked at what were considered known egregious violators of labor laws—industries that were know for having exploitive, ‘slave labor’ type situations; ‘sweat shops’ and that type of thing. These are the kinds of employment situations that are looked at next.
Because these employment laws apply to everyone, the agency also has a program that randomly selects businesses for audits also, so that there is no issue of ‘selective enforcement’ or things like that. They also have system, much like the IRS, where the agency gets leads or tips from the public, that suspect that there might be criminal activity going on within a certain company.
ALIVE: So let me clarify. In order to protect things and locations like the Golden Gate Bridge, for example, DHS doesn’t just look at direct terrorist attacks on those facilities, but at the possibility that terrorists might try to work there, thereby gaining access to critical infrastructure from the ‘inside,’ as it were?
ICEMAN: Absolutely. ICE would look at these places from the employer side, trying to prevent terrorists from getting inside of these types companies that have direct access to critical areas, by ‘planting’ employees. The agency tries to be proactive, and the ‘choke point’ on all of this is the I-9, for the identity of the actual employees working in these sensitive areas.
The second is the other group, where they look at the second tier, which are employers and industries that have a track record of employment violation—of cutting corners, where undocumented workers might be more likely to be working. These are the types of jobs where it would then be easier for a potential terrorist to hide, because they know the employer isn’t following the I-9 rules closely.
There are known violators—those who smuggle workers for example, and then there are known industries, like the hospitality and restaurant industry, and construction—all have been known to hire undocumented workers.
The focus now is to go after the employers, rather that the employees, to enforce worker documentation.
ALIVE: So what are the penalties possible for employers that choose to ignore the laws regarding I-9 forms, for example?
ICEMAN: In that case, what you’re talking about is called ‘willful disregard,’ and not following the law. If you had an I-9 and did not make sure it was filled-out correctly or did not bother to check the documents, just dealing with the ‘paper’ violation—that is the administrative violation, meaning simply that you did not ‘fill out the documents properly,’ you’d be looking at a fine of potentially $1,000 to $1,100, per each I-9. You know, the I-9 form is probably the most complicated one-page document that the government has. People don’t realize that. It has a lot of things you have to pay attention to that the government really doesn’t give any breaks on.
Then, they consider things like, how many violations are there? How many employees do you have? Have there been past violations? They look at all of these factors. Then, if there is a charge of knowingly trying to ignore employment law—for example, if you received information somehow that an employee’s driver’s license was fake or that the social security number did not match the employee, and you took no steps to correct or report that fact, then the government could use that against the employer to show that they ‘knowingly’ committed a violation of the law. This can bring the employer prison time and significant fines. Would this happen on a first offense? Probably not, but the amount of money that an employer would spend in this case on attorney fees to defend himself alone makes it pretty costly and serious, no matter what.
Even if an employer doesn’t end up serving time in prison, they can still be saddled with a felony conviction on their record, which isn’t good.
One of the other risks too is that if an employee or some employees are discovered to be undocumented, it can be very costly for the company because they are going to lose that employee or those employees.
And it isn’t going away and it’s something people really should start paying attention to. DHS and ICE are taking all of this more and more seriously. In fact, they just opened what’s called the ‘Audit Fusion Center,’ in Crystal City Virginia, right across from Washington DC, which has been created to conduct and manage the mass production of audits. Over the past year alone, they have increased staffing from having only two or three forensic auditors per office in the field, to where they now have as many as ten many offices. You can see where this is going. It’s going to be much more than just a random chance that a company will be audited. In two or three years, virtually every company could eventually be audited.
ALIVE: With your experience as a special agent for ICE, what percentage of employers are doing things correctly, overall?
ICEMAN: I would say 35 to 40% pf employers are doing things correctly. The other 60 to 65% are not. And what I mean by that is they may be doing most of the steps correctly, but many of those may still have undocumented workers working for them.
ALIVE: Is it pretty easy for companies to stay on top of this and make sure they are doing the right things that need to be done?
ICEMAN: Unfortunately, it’s not real easy. It’s a fast-pace changing environment, and it’s easy for employers to miss things that can be costly. Even if they are doing everything ‘properly’ as far as paperwork is concerned, they might still end up with lots of undocumented workers being employed due to false identification. In an audit, that company would lose all of its workers. For example, in a case, where a construction company thought they were doing everything right with their I-9s, after we conducted an audit, they lost 90% of their employees. They had about 50 employees, so it basically shut their business down.
Basically, it’s only the largest, most reputable companies that have their acts together. Most mid-sized and smaller companies are in violation in most cases. A lot of small companies don’t have I-9 forms on their employees. And like I said, if a business has, say twenty employees and no I-9s for any of them, at $1,000 each in basic fines, that’s $20,000 that an employer is faced with. Not easy in this economy.
ALIVE: So, what can employers do to protect themselves? I would be pretty hesitant to ask the government to come in and check my records. It would be like inviting the IRS in. Are there private companies or consultants that business owners can use to make sure they are in compliance?
ICEMAN: There are a few out there, but not that many. As a recently retired ICE agent and trainer, that’s what I do now. And there are a few law firms that have ex-agents like myself working with them as consultants. You have to make sure whoever you work with is qualified. The IRS would argue with this point, but immigration and employment law is one of the most complicated and convoluted in the country, so you have to make sure you’re working with people who know what they are talking about.
Since 9/11 the stakes are very, very high, so the government isn’t willing to take chances with this. And they aren’t cutting employers any slack, either. Every April 15th, business people get all worked up about their taxes, and worry that the IRS might come in to audit their books. But think about it. The stakes with terrorism are much, much more serious. So, how serious do you think those ICE agents will be when they come knocking on your door for an I-9 audit, mister employer?
