Angelo Paparelli Featured in The National Law Journal
"Immigration Initiative Raises Compliance Stakes"

Angelo Paparelli was featured in the July 15, 2009 issue of The National Law Journal in the Q & A, "Immigration Initiative Raises Compliance Stakes." The article discussed the recent announcement by U.S. Immigration and Customs Enforcement (ICE) of a new audit initiative to ramp up employment document inspections and how it is raising the compliance stakes for companies with immigrant employees.

According to the article, ICE issued 652 inspection notices on July 1, compared with 503 for all of fiscal year 2008. The article also noted that the ICE audit push comes amid debate over the E-Verify rule, which would require federal contractors to use a government database to certify workers' immigration status. Angelo commented on what companies should do during, or even before, an audit of Forms I-9 (Employment Eligibility Verifications) and the legal pitfalls to avoid during compliance.

Asked whether companies can slow down or control the audit process, Angelo noted, "In my experience, if there are good reasons, the government is willing to grant a postponement for a reasonable period. There's also a regulation that allows employers to meet ICE officials at a different location than their business…. Ultimately, an [ICE administrative subpoena] has to be enforced by a judicial order. A client who perceives that [an ICE demand for documents] is overbroad can go into federal court. Employers should be careful that government exuberance doesn't lead to the voluntary turnover of documents the government shouldn't be requesting. Companies should also make a complete copy and make sure they get an itemized receipt for everything they turn over to the government. [Without those], it becomes very difficult to establish compliance if the government makes a finding of violation and you want to challenge it."

Angelo also commented on what companies can do to prepare for a potential audit. He explained, "There's a statute of limitations on I-9 enforcement, which says that after five years, the government cannot impose a paperwork fine. But five years from what date is the question. If the employer never did an I-9, it's five years from the date of hire. If it's incomplete, the five years begins to run only from the date of correction to make it complete. That's why it's highly important that employers take a look now to make whatever corrections can be made. At least the clock on limitations can begin to run. The other thing is, employers have the right to throw away I-9s [after a period of time] under a so-called retention rule."

Further, Angelo observed that there are legal pitfalls that employers should look out for during compliance. For instance, Angelo pointed out that "There's a risk that the employer could go overboard and terminate people in a manner that creates liability under state and federal employment laws. Say you terminate someone, but the day before, they made an allegation of an environmental violation at the company. Merely to comply with immigration law does not immunize the employer for liability for a wrongful discharge claim or violation of a union contract."

Angelo concluded that if the government finds a violation or assesses a fine and the employer wants to appeal, "There's a lot of negative case law that all employers must deal with in order to litigate an appeal in front of administrative law judges or in front of the courts. They have to be able to distinguish their case from the negative case law that was created between 1986 [when the documentation law took effect] and 2000. During those years, the government mostly pounced on small companies and individual employers who did not have the resources to defend themselves.”