Q & A with immigration official on worksite enforcement

Chipotle, a Colorado-based Mexican restaurant chain, is the subject of an investigation by Immigration and Customs Enforcement into whether it knowingly hired illegal workers in Minnesota.

Immigration law requires employers to check identity and work authorization of all employees, but they can't scrutinize one group of employees' documents more closely than others, or they'd be discriminating under U.S. Labor Law.

Immigration and Customes Enforcement has launched a new voluntary program called IMAGE that trains employers on how to detect fake documents.

ICE spokesman Shawn Neudauer in the Twin Cities answered, via e-mail, a series of questions from MPR reporter Sasha Aslanian about the IMAGE program and other worksite enforcement issues.

Sasha Aslanian: What is the IMAGE program?

Shawn Neudauer: IMAGE stands for ICE Mutual Agreement between Government and Employers. This voluntary program assists employers in developing a more secure and stable workforce by offering free education and training on proper hiring procedures, fraudulent document detection, the use of the E-Verify employment eligibility verification program and anti-discrimination procedures.

Aslanian: What information does the public have a right to know about which companies ICE has penalized, and what the consequences were for them?

Neudauer: Final orders, in relation to I-9 audits, are a matter of public record because once issued, they signal the close of a case. Prior to this information related to I-9 audits is subject to non-disclosure as it is an on-going investigation. A final order is the determination of a fine, the name of a company and the year in which the order was issued. If the matter warrants criminal charges, those cases are handled by U.S. Attorney's offices and they would be the more appropriate resource for answering further questions on the issue of what is public information.

Aslanian: What kinds of employers is ICE prioritizing?

Neudauer: ICE has legal authority to conduct I-9 audits on any U.S. business, and there is no bar to who can or will be audited; however, there are some businesses that warrant more frequent attention such as those involved with critical infrastructure like power generating stations or airports.

Additionally, we do focus on egregious employers who not only knowingly hire unlawful workers but also exploit and/or harbor them. Often worksite enforcement cases will lead to additional charges like alien smuggling/harboring, document fraud and identity theft.

Aslanian: What role do tips play?

Neudauer: All of ICE's operations are based on tips, leads and intelligence. As with any law enforcement agency ICE uses tips and other investigative leads to uncover and investigate crime. ICE has a national call center (1-866-DHS 2 ICE) which the public can use to report any suspicious activity.

Aslanian: When a company gets a notice of suspect documents, how much time are employees allowed to remedy their situations?

Neudauer: Each I-9 audit is handled on a case by case basis. As a result there is no standard deadline, each case is different; however, employers are given a sufficient and reasonable amount of time to submit all paperwork, including soliciting further information or documentation from employees.

Aslanian: If you're not deporting the workers, aren't you just driving them further into an underground economy?

Neudauer: Although our focus is on employers that does not mean that ICE is turning a blind eye to individuals encountered during the investigation who are in the country illegally. ICE prioritizes targeting criminal aliens over non-criminal aliens and in FY2010 ICE deported more than 392,000 aliens to their country of origin. Approximately half of those were aliens with criminal convictions.

Aslanian: Seems like a lot hinges on whether the employer was "knowingly" hiring illegal immigrants. Companies say they are victims of fake documents. Is that a legitimate defense?

Neudauer: ICE does not require that businesses be document experts; however, companies with incomplete or inaccurate documentation are still subject to possible penalties. We recognize the vast majority of employers in the U.S. want to abide by the law.

Aslanian: If company knowingly employed illegal immigrants, who's culpable? The immediate hiring manager? The CEO?

Neudauer: It depends on what the investigation turns up. This is why each case is handled on a case by case basis.