Kennedy's Immigration Law Report : Iowa Immigration Lawyer & Attorney : Austin Kennedy : Brick Gentry Law Firm : Green Cards, Permanent Residency

On July 1, 2009, Immigration and Customs Enforcement (aka, ICE) launched a new, "bold", audit initiative by issuing Notices of Inspection (NOIs) to 652 businesses nationwide.  In comparative terms, these 652 NOIs are more that ICE issued during all of last year.  According to ICE's press release, the notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with the I-9 employment eligibility verification laws and regulations.  This new initiative is part of the Obama administration's directive to ICE to shift focus away from finding illegal workers and toward efforts to hold employers accountable for their hiring practices. 

Somewhat ominously, ICE's press release also states that the 652 businesses presented with NOIs have been selected as a result of leads and information obtained through other investigative means.  In other words, these audits are specifically targeted, rather than casually random. 

If you receive an NOI from ICE, my best advice is for you to call your local immigration attorney. 

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Last summer former Agriprocessors supervisor Martin de la Rosa-Loera pleaded guilty to aiding and abetting the harboring of undocumented immigrants.  The 43 year old was sentenced on Tuesday to 23 months in prison, followed by two years of supervised release.  Other top managers will face trial in September 2009. 

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U.S. Attorney Matt Whitaker announced yesterday that his office and federal immigration enforcement authorities had uncovered an alleged scheme here in Iowa involving the H-1B visa program.   Whitaker alleged that U.S. computer companies Vision Systems Group Inc. and Pacific West Corp  claimed to have H-1B employees located in Iowa, when in fact, the H-1B employees were actually located in larger coastal cities.   If you're not familiar with the H-1B program, you're probably wondering why and how this would be a crime. 

Employers of H-1B workers are required to pay these employees at least the minimum of the "prevailing wage" for the specific occupation in the specific geographic area where the employee will be working.  Because of cost-of-living differences and a host of other economic factors, the prevailing wage for a software engineer working in Des Moines, IA, is considerably lower than the prevailing wage for a software engineer working in Manhattan or Los Angeles.  So, basically, Whitaker is alleging that the computer companies were claiming that their H-1B employees were working in Iowa, when in fact they were working in coastal cities, so that the employer could pay the employees considerably less money. 

If true, this is an unwelcome development, and certainly an incident Sen. Charles Grassley and other anti-H-1Bers will point to as an example of the the visa program's supposed inherent evil.  For the uninitiated, the H-1B visa program allows the U.S. government to issue a total of 65,000 visas per year to foreign workers who qualify for an H-1B visa and want to come work for U.S. employers.  In order to qualify for an H-1B visa, the hiring company must have a position available that qualifies as a "specialty occupation".  In very general terms, a specialty occupation is one that requires a minimum of a bachelor's degree in a related field of study.  Further, the position must be an occupation that requires a theoretical and practical application of a body of highly specialized knowledge.  And of course, the worker's educational and professional background must fit the specialty occupation. 

As this scandal unfolds across the 6 other states cited by Whitaker, my concern is that these bad apples will be held up by anti-immigration forces as a reason to eliminate or severely restrict the H-1B program.  A short-sighted measure of this nature would be an unmitigated economic disaster. 

The H-1B visa is the primary vehicle through which immigrant entrepreneurs enter the United States.  And according to Vivek Wadhwa, a senior research associate at the Labor and Worklife Program at Harvard Law School, more than half of Silicon Valley start-ups were founded by immigrants over the last decade.  These immigrant-founded tech companies employed 450,000 workers and had sales of $52 billion in 2005 alone.  Furthermore, a recent study by William Kerr of Harvard Business School and William Lincoln of the University of Michigan found that in periods when H-1B visa numbers went down, so did patent applications filed by immigrants in the U.S.  And when H-1B visa numbers went up, patent applications also increased.  If we truly want our country to be the world's preeminent knowledge-based economy, why would we make it more difficult for the world's most entrepreneurial minds to legally find their way to the United States? 

For every U.S. employer who abuses the H-1B visa, there are thousands who use the program appropriately, in accordance with the strict letter of the law.  With our economy on very unsteady footing, now is not the time to be placing additional restrictions on the H-1B program.  The system already has safeguards in place, they simply need to be enforced.  So, as long as these H-1B related arrests don't create a backlash against the H-1B program as a whole,  they are a good thing.  The arrests prove that the appropriate safeguards already exist to hold accountable employers who chose to utilize the H-1B program. Here's to hoping that cooler legislative heads prevail. 

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In what I think is a somewhat surprising decision, Judge Linda Reade today agreed to release Sholom Rubashkin on a $500,000.00 bail pending his trial in September 2009.  Reade granted the bail despite the prosecution's evidence that Rubashkin is alleged to have previously committed federal bank fraud while on release from arrest on prior immigration charges.   The prosecution also argued against the granting of bail by pointing out that Rubashkin had made a trip to Canada almost immediately before the government brought the current charges against him.  Finally, Reade granted Rubashkin's bail despite the fact that two former Agriprocessors managers are alleged to have already absconded to Israel.  As to the terms of the bail: 

Defense lawyers offered to have a private security firm use cameras and around-the-clock guards to confine Rubashkin to his Postville home. But Judge Reade did not require house arrest. She ordered that Rubashkin remain in Allamakee County unless he receives special permission to travel elsewhere. She also ordered that he have no contact with any potential witnesses in the case, and that he stay away from Agriprocessors.

The federal prosecutors will have until Thursday morning to decide whether or not to appeal Reade's decision to the 8th Circuit Court of Appeals.  The full text of the Register's article can be found here. 

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Sholom Rubashkin appeared yesterday in court before Linda Reade, the chief federal judge for the northern district of Iowa.  During the hearing that began yesterday and is expected to conclude today, Rubashkin's defense team asked Judge Reade to overturn a decision made by a magistrate last fall to deny Rubashkin bail.  Rubashkin has been in jail since Nov. 14, following the worksite immigration-related enforcement raid which occurred in Postville, Iowa, on May 12, 2008. 

This article in yesterday's Des Moines Register does an excellent job of highlighting some of the hearing's more interesting moments.  Notably, prosecutors confirmed that two other former Agriprocessors managers are believed to have fled to Israel instead of facing charges in the United States.  Count 12 of the superseding indictment filed on January 15, 2009, reveals that one of these former managers is believed to be Hosam Amara.  The Register article also notes that Amara is alleged to have repeatedly contacted people in northeast Iowa from his location abroad.  Concern over Rubashkin's potential flight to Israel is what caused the magistrate last fall to deny Rubashkin bail.  As I mentioned earlier, Rubashkin's bail hearing is expected to conclude today, and I'll update this post once Judge Reade has ruled on the matter. 

Also, as I mentioned in passing, on January 15, 2009, the grand jury filed a superseding indictment against defendants Agriprocessors, Inc., Sholom Rubashkin, Brent Beebe, Hosam Amara, and Zeev Levi.  The 99 count indictment alleges that the defendants committed some or all of the following crimes:  conspiracy to harbor undocumented aliens for profit, harboring and aiding and abetting the harboring of undocumented aliens for profit, conspiracy to commit document fraud, aiding and abetting document fraud, aiding and abetting aggravated identity theft, unlawful flight to avoid prosecution, bank fraud, false statements and reports to a bank, money laundering and aiding and abetting, and finally, willful violation of an order of the Secretary of Agriculture and aiding and abetting the same.  The full text of the superseding indictment can be found here. 

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At yesterday's confirmation hearing Janet Napolitano signaled what some in the media are calling a "clear break" with the outgoing Bush administration's worksite enforcement protocol and priorities.  I'm not sure I would term it a clear break, but her comments do portend a shift in emphasis.  This much seems clear:  the stepped-up level of worksite enforcement employers around the U.S. have been experiencing over the last 2-3 years will continue.  In that way Napolitano isn't at all changing the agency's direction.  However, Napolitano stated clearly that DHS' emphasis under her watch would shift away from the prosecution of illegal workers and will double-down, instead, on the prosecution of the employers who hire the illegal workers.  So that, apparently, is where the new administration's policy change will most manifest itself.  

In short, employers beware.  My best advice to employers is to get in touch with your attorney and arrange to get yourself a serious worksite immigration and hiring practices compliance program.  Spending a little bit of your resources right now on compliance training will save you many nights of sleep and, in some cases, may even prevent the prosecution of you and your staff. 

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Yesterday Karina Pilar Freund, the former Agriprocessors' human resources employee, did in fact plead guilty.  However, as I had speculated, it sounds like Ms. Freund benefited from some degree of prosecutorial leniency.  Under the original conspiracy to harbor charge Freund could have faced a maximum of 5 years imprisonment.  Instead, yesterday at the Federal Courthouse in Cedar Rapids, IA, Freund pleaded guilty under an agreement with prosecutors to a misdemeanor count of aiding and abetting a pattern or practice of hiring undocumented immigrants.  I believe this would fall under the IRCA misdemeanor violations, probably 8 USC section 1324(a)(f).  According to her attorney, Mark Brown, Freund will now face a maximum sentence of up to 6 months in prison and a fine of up to $3,000.00 for each unauthorized immigrant involved in the offense. 

I certainly don't mean to create the impression that Freund is getting off lightly.  The open-ended "per unauthorized alien" nature of her fines could really add up.  And obviously, the prospect of any time spent in jail shouldn't be minimized.   To understate things a bit, prison isn't designed to be an enjoyable place.   Plus, the news articles indicate that Freund (along with other Agriprocessors officials) is scheduled to go to trial next April on more than 9,000 charges alleging child labor violations at the plant. 

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As we all know, Immigration & Customs Enforcement (ICE) raided the Agriprocessors kosher slaughterhouse in Postville, IA, in May 2008 and in the process arrested 389 allegedly undocumented workers.  Since that time details have emerged concerning the alleged criminal and immigration violations commited by the Agriprocessors' mid and upper level leadership.  Employees being targeted include the former CEO Sholom Rubashkin, former operations manager Brent Beebe and former human resources employee Karina Freund.  Two other former Agriprocessor supervisors have been indicted but are currently on the lam.  For various practice-related reasons I've made the editorial decision to largely stay away from this story, but I think it's time to now dive in as the pleas come rolling in and the trial dates move closer and closer. 

With indictments being brought against mid level HR employees and supervisors, this case serves as a perfect example of the treacherous web of immigration-related liability that can spread throughout a company.  As an HR employee or a supervisor of any level of a company operating with a high-risk workforce, you're simply deluding yourself if you believe that federal authorities are only interested in prosecuting the Big Bosses and CEO Muckety Mucks. 

To recap, the charges to date against the Agriprocessor workers include:  conspiracy to harbor undocumented workers for profit, harboring and aiding and abetting document fraud, aiding and abetting aggravated identity theft and bank fraud. 

In order to prove the conspiracy to harbor undocumented workers charge, the government will have to prove the following:  1) an agreement with at least one other person; 2) the harboring of at least one unauthorized alien; and 3) simply one act furthering the goal of the conspiracy.  The maximum period of imprisonment is 10 years, while the maximum fine on this charge is the greater of $250,000.00 or 2x the financial gain achieved through the conspiracy. 

As for the aiding and abetting aggravated identity theft charge, the government will have to provide proof of the knowing transfer, possession or use of a means of personal identification of another without lawful authority during the commission of specified felonies, including false presentation of citizenship, fraud, etc. 

Presumably none of these charges will be an easy lift for the government, but I think it's safe to say that the discovery process will shed some light on the direction this trial is headed.  Both sides are currently combing through an abundance of documents, including:  all Agriprocessors' personnel office files, 10 binders containing I-9 forms, 12 binders of grand jury testimony, electronic discovery that would equal 100 banker boxes if in paper form and at least 10 boxes of records on the bank fraud charges.  As a slightly modified version of the saying goes, the proof will likely be in the paper. 

Today news sources are telling us to expect Karina Freund, the former HR employee, to plead guilty.  Originally she was chaged with conspiracy to harbor undocumented immigrants and haboring, aiding and abetting the harboring of undocumenteds for profit.  I'll keep you posted on the specifics of Freund's plea, but I'm willing to bet we see some limited leniency from the government toward Freund in exchange for Freund's cooperation with the ongoing investigation and subsequent prosecution. 

As for the remaining defendants, U.S. District Chief Judge Linda Reade has indicated that the trial will start Sept. 14, 2009.  With that said, the prosecuting U.S. Attorney, Peter Deegan, has recently intimated that the investigation is ongoing and that there will likely be a superseding indictment with additional charges filed in January 2009. 

Whether you're an immigration lawyer, criminal lawyer, human resources employee or manager of any level, this impending litigation will serve as a case study in the potential modern day pratfalls and liabilities involved with the combination of an employment environment and a high-risk workforce.  Stay tuned...

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