by Elizabeth R. Blandon

The Department of Homeland Security (DHS) charges employers that they should have known of the improper legal status of their employees in the following situations:

• An employee's request for the employer's sponsorship for a labor certification or visa petition;
• Receipt of a no-match letter from the Social Security Administration (SSA); and
• Receipt of a notice from DHS (usually after an I-9 audit) that the employee's employment authorization documents presented in connection with completion of the I-9 form do not match DHS records.

Fortunately, a protocol keeps employers immune from charges during a civil or criminal investigation if they follow those procedural steps.

Work site raids by the Department of Homeland Security (DHS) have become too frequent. One company alone had its employees’ records in Colorado, Iowa, Minnesota, Nebraska, Texas and Utah searched. DHS is targeting employers not just for immigration violations but also for criminal and other violations, such as identity fraud.

It is imperative that employers maintain up to date I-9 Forms on anyone that the employer controls. DHS will investigate the hours worked, duties performed, and chain of supervision, as well as other factors, to determine whether the alien is an employee. Thus, a worker who is leased, an independent contractor or a subcontractor may not free the employer from liability if the foreign national is an illegal worker and DHS finds out. If DHS determines the foreigner is an employee and the proper forms are not completed, the employer will be fined.

Some suggestions from the American Immigration Lawyers Association in the event of a raid are as follow:

• Employers and employees should remain silent. Do not provide information.
• Employers should immediately call media and unions in order to videotape and photograph the raid.
• Determine what workers if any have been apprehended by DHS and where these workers are being held.
• Family members of apprehended foreign nationals should be notified immediately.

Employers should assist detained foreign nationals by helping them secure independent counsel. Employers and workers should not have the same attorney.

To avoid the difficulties brought on by worksite raids, employers should retain experienced counsel in an effort to obtain employment authorization documents for their employees. Because the immigration laws are complex and constantly changing, a consultation is required.