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Immigration On The Move: 2006 Developments & Compliance Advice For 2007 And Beyond

by Josie Gonzalez, Esq.

To keep you apprised of the latest information on immigration, this article covers the most recent legislative developments, as well as compliance advice for 2007 and beyond.


Promising 2007 legislative developments

Marking the perseverance of advocates of comprehensive immigration reform, within weeks of the start of the 110th Congress, two significant immigration bills were introduced. The Agricultural Jobs, Opportunity, Benefits, and Security Act of 2007 garnered strong bi-partisan support. More significantly, on January 4, 2007, Majority Leader Senator Reid (D-NV) introduced the Comprehensive Immigration Reform Act of 2007 (S.9) (, announcing that comprehensive immigration reform was one of the Senate’s top 10 priorities and that it should include a path to earned legalization for undocumented immigrants.


Similar sentiments were echoed by the Minority Leader Mitch McConnell (R-KY) who said: "We should be daring about immigration reform - and act on it soon. The voters demand it. We have a duty to deliver." With the nation’s top economists and two thirds of the American voters supporting comprehensive immigration reform, passage of legislation looks promising for 2007.


Vigorous worksite enforcement continues unabated

Over the last year and a half, serious criminal charges are increasingly being used to target businesses that employ illegal immigrants and investigations are resulting in numerous convictions nationwide.


As reported in the Washington Post on April 16, 2006, Julie Myers, assistant secretary of Immigration and Customs Enforcement (ICE), called the approach "the future of worksite enforcement" and predicted that, because such investigations are often lengthy, results would be more evident later that year and in 2007. "People are doing this for money, not for any other reason," Myers said of those who employ illegal immigrants. "…so we really need to go after them where it hurts. If you’re blatantly violating our worksite enforcement laws, we’ll go after your Mercedes and your mansion and your millions. We'll go after everything we can, and we'll charge you criminally."


Strong worksite enforcement, marked by criminal prosecutions and hefty fines, including asset forfeitures, rippled across the nation in 2006, and more of the same is promised by ICE. Homeland Security Secretary Michael Chertoff was quoted in a piece (April 21, 2006), as saying "[we] will use all the tools we have…to break the back of businesses that exploit undocumented immigrants."


"During fiscal year 2006, ICE arrested 718 individuals on criminal charges in worksite investigations and apprehended another 3,667 illegal workers on immigration violations, more than a three-fold increase compared to 2005. For a summary of recent ICE worksite enforcement activity see


Perhaps the most controversial enforcement activity of 2006, dubbed "Operation Wagon Train," involved raids at seven Swift Foods facilities in six states resulting in the arrest of 1,282 people – of whom 65 have been charged criminally for "identity theft." Although Swift Foods had been participating in the Department of Homeland Security’s (DHS) Basic Pilot Program, a web-based tool developed for employers by DHS to verify the validity of new hire work authorization documents, ICE investigations discovered that many employees who were run through the Basic Pilot, perhaps 30%, were assuming the identities of others.


The Swift raids represent ICE’s largest worksite enforcement to date, surpassing the April 2006 raids at IFCO, a pallet company, where 1,187 people were arrested. During Operation Wagon Train, ICE agents corralled employees into cafeterias for interrogation and arrest. The facilities were completely shut down as ICE agents surrounded the premises.


In a December 2006 press conference, DHS Secretary Chertoff signaled that Swift Foods, or perhaps rogue hiring managers and supervisors, are investigatory targets, stating: "…I emphasize that the investigation is continuing, particularly with respect to those who facilitated or conspired with others to allow this use of identity theft to support illegal work." (


That identity theft is the Achilles heel of the Basic Pilot program is news to no one, including Swift Foods, who brought the problem to the attention of a House congressional subcommittee with these words:


As currently structured, the Basic Pilot Program cannot detect duplicate active records in its database. The same social security number could be in use at another employer, and potentially multiple employers, across the country. The underground market responded by replacing counterfeit documents with genuine identification documents obtained under fraudulent terms – for example, state identification cards obtained with valid copies of birth certificates. As an employer, we must accept such cards on face value. As you can see, employers have no foolproof way to determine if a new hire is presenting valid identification documents created under fraudulent circumstances. Furthermore, attempts to use additional means to determine employee eligibility place employers in jeopardy with law enforcement agencies. From our point of view, employers like ourselves who are trying to abide by the law are not the problem in the immigration reform debate - the current immigration system is the problem. (Subcommittee on Workforce, Empowerment, and Govern-met Programs, House Small Business Committee, Mr. Jack Shandley, Senior Vice President Human Resources of Swift & Company - June 27, 2006.)


Ironically, Swift’s participation in the Basic Pilot contributed to an immigration-related discrimination suit that it settled for $187,000 in November 2002 stemming from an incident involving a Spanish speaking job applicant who presented a U.S. passport but whose data was rejected more than once by Basic Pilot.


Social Security No-Match letters - a keg of dynamite waiting to ignite

In January 2007, Donna Lake, a Human Resource Manager at PLASTRGLAS Inc. in Omaha, Nebraska was arrested for allegedly encouraging or inducing aliens to reside in the U.S. The ICE affidavit in support of the criminal complaint reveals that a wiretap was placed on a confidential informant/employee to whom ICE agents gave a "No-Match" Social Security letter and directed that he speak to Ms. Lake about the need to change his identity because of the letter.


On tape, Ms. Lake refused to allow the change because she said that it was company policy that individuals could change their information twice, but not three times. She stated that she gets the no-match letters frequently and forgets about them because it is voluntary for her to answer the letters and she chooses not to answer them; and that the letters cover a lot of people at the company. During the arrest, ICE agents seized a copy of the No-Match letter, which contained 26 employee names.


Profile of a targeted company and common pitfalls to avoid


  • Company executives fail to understand the culture at the work site and are the last to know that problems are brewing.
  • Hiring decisions are made by foreign-born personnel who might have mixed loyalties – with strong sympathies toward job seekers who are desperate for employment.
  • I-9’s are maintained perfectly but there is only attention to detail, not to substance.
  • Companies are reluctant to question the authenticity of employee documents for fear of discrimination suits.
  • The pool of new hires comes mainly from the existing workforce – their relatives and friends.
  • Management assumes that long years of residence in the U.S. and U.S. born children equate to legal status for the employee, or thinks that one can get a Green Card easily and quickly.
  • The company has received Social Security No-Match letters and it believes that it has no responsibility to question employees over discrepancies.
  • Management allows employees to change their identities and present new and different documents without questioning their authenticity.
  • The company fails to realize that supervisors and lower level managers’ actions can be imputed to management; their sins are your sins.
  • The company uses translators for I-9 completion and doesn’t know if the translation is accurate and complete.
  • The company ignores complaints and rumors that employees are undocumented or are using the valid documents of another person.
  • The company is unaware that there are no secrets in the workplace and some workers will cooperate with ICE when given the choice of a coveted work permit or threatened with jail and deportation.
  • The company doesn’t check the validity of social security cards through any of the systems available to employers.
  • Employees never take any vacations back home and there are rumors about their fears of returning to the U.S.
  • Employees have been arrested for failing to have a valid driver’s license or in other ways have come in contact with law enforcement and have been questioned about their jobs.
  • The company has failed to adopt a meaningful immigration compliance policy.

Operation Wagon Train illustrates the massacre that can occur if employers do not circle their wagons to protect themselves from marauding ICE agents. Employers who can identify with the above profile of the targeted companies need to take their immigration compliance policies to a higher level. Taking no action in the face of multiple warning signs may result in a relocation of the company’s executives to Boot Hill.

© 2007, Josie Gonzalez, Gonzalez & Harris

This article was originally published in the Employers Group Newsletter (February 2007).  Employers Group is a member of NAM, and is a human resources management association for California employers.

About The Author

Josie Gonzalez is the managing partner of Gonzalez & Harris, a Los-Angeles based immigration firm, and has represented employers in all aspects of immigration law for more than 25 years. She is a former criminal defense attorney and public defender. She has testified twice in Washington, D.C. regarding the impact of U.S. immigration laws on the business community, and is a frequent commentator on agency regulatory activities. Ms. Gonzalez serves on the AILA Board of Governors. She has been recognized by AILA with a Presidential Award (2006) for her work as Lead Counsel on the BALCA amicus brief (Matter of HealthAmerica) and for "Excellence in Advancing the Practice of Immigration Law" (1999), and by the Los Angeles County Bar Association's Immigration Law Section with a "Lifetime Achievement Award" (2005). Ms. Gonzalez publishes numerous articles for legal and trade journals on employer compliance/enforcement, and currently represents a major corporation facing criminal charges for hiring undocumented workers.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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