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Mid-Level Managers Caught in the Middle of I-9 Worksite Enforcement: Company Forfeits Millions of Do

Grand America Hotels and Resorts operate luxury hotels and resorts in Arizona, California, Idaho, Utah, and Wyoming through its Sinclair Services subsidiary.

ICE Investigated Grand Palace for Alleged Immigration Violations

In 2010, US Immigration and Customs Enforcement began investigating the employer for potential Immigration Reform and Control Act violations, including errors on the I-9 Employment Eligibility Form and employing workers who allegedly did not have authorization to work in the United States. What began as a “simple” I-9 audit has resulted, four years later, in drastically different outcomes for the company and the middle managers responsible for hiring of the workers. One of the allegations against the company involved bringing terminated unauthorized workers back to work at Grand America as contractors through employment agencies.

Company Agreed to Forfeit Profits and To Spend $500,000 on Immigration Compliance in Exchange for Non-Prosecution Agreement

The company entered into a non-prosecution agreement with the government. In exchange for criminal prosecution, the government and Grand America have agreed that Grand America will forfeit approximately 2 million dollars to the Department of Homeland Security and spend nearly $500,000 to set up its corporate immigration compliance, including: adopting new policies to comply with immigration law; incorporating immigration law compliance clauses into labor service contracts; re-training human resources employees on I-9 procedures; and agreeing to continue to use the E-Verify employment eligibility verification website. In addition, Grand America has agreed to retain immigration and corporate counsel to advise the company regarding hiring and immigration procedures. It is important to understand that only if the company complies with the terms of the non-prosecution agreement, neither the company nor its owners will be criminally indicted.

Grand America’s Middle Managers and Supervisors To Be Criminally Indicted

In contrast, Grand America’s “middle managers” and “low level employees” who were allegedly involved in the hiring and management of the unauthorized workers, have not received protection under the company’s non-prosecution agreement with the government. Grand America’s mid-level management stands accused of rehiring unauthorized workers to work at Grand America’s hotel through several service contract companies. This brings flashbacks of the Tyson investigation, where plant managers were criminally indicted for immigration violations and labeled “rogue” employees by the owners of Tyson. Grand America’s middle management and supervisory employees were fired by Grand America. They will be criminally prosecuted by the government, and will have to defend themselves without the company’s help.

What Should Businesses Do to Avoid Liability for Immigration Violations?

In this case, the company and its owners avoided criminal prosecution. This is a much better result for the employer compared to other cases, where business owners and top brass were targeted and criminally prosecuted. However, they lost a significant amount of money in forfeitures and legal fees. Employers should not wait until ICE is at their doorsteps to take action. Immigration compliance is best done before ICE comes with an audit. According to this ICE-driven non-prosecution agreement, compliance should include:

  • --adopting policies to comply with immigration law;

  • --incorporating immigration law compliance clauses into labor service contracts with employment agencies and other contractors;

  • --training human resources employees on I-9 procedures;

  • --using E-Verify; and

  • --retaining immigration and corporate counsel to advise the company regarding hiring and immigration procedures.

Lessons for Middle Management/Supervisors

Middle managers and supervisors should think hard before taking any risks with their responsibilities in the hiring process, such as completing I-9s and dealing with employment agencies. Middle managers and supervisors need to ask themselves, is the employer following ICE Best Practices? Do I have enough training and tools to complete the I-9 process and hire service contract workers in compliance with the law? If the employer is not following ICE Best practices as listed in the Grand America non-prosecution agreement (see above), then the outcome for the middle managers and supervisors may resemble the outcome in the Grand America matter. The company will just pay fines while the middle managers and supervisors are stuck defending themselves in criminal court. Additional Resources:

How to Prepare for an ICE I-9 Audit Information on training can be found HERE

Internal I-9 Audit: Immigration Options Available for a Terminated Employee

Annual I-9 Audits: Why Your Company Isn’t One and Done

Half a Million Companies Now Participate in E-Verify… Does Their Participation Keep Them Safe?

Posted by Business Immigration Lawyer Mira Mdivani MDIVANI CORPORATE IMMIGRATION LAW FIRM

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