Photo: Diego M. Radzinschi/ALM

Earlier this month, federal immigration agents raided dozens of 7-Eleven Inc. stores nationwide and arrested 21 people. While the early-morning raid was the biggest crackdown under the Trump administration on a company suspected of hiring undocumented workers, it certainly will not be the last, legal experts said.

New U.S. Attorney General Jeff Sessions has not been shy about one of his agency's new priorities—illegal immigration—and has ushered in an era in which previously unenforced conduct related to the employment of unauthorized workers is now fair game.

“Although the law hasn't changed, there's a lot of power behind the AG, and there have been policy and administrative changes that are affecting enforcement procedures,” said Littler Mendelson shareholder and global mobility and immigration practice group chair Jorge Lopez.

In a statement, Irving, Texas-based 7-Eleven said that each franchise is run by “independent business owners,” adding that each is “solely responsible for their employees, including deciding who to hire and verifying their eligibility to work in the United States.”

“7-Eleven takes compliance with immigration laws seriously and has terminated the franchise agreements of franchisees convicted of violating these laws,” according to the statement.

Corporate Counsel spoke with Lopez and two other immigration law experts about what companies and their top lawyers can do to prevent a fate similar to that of 7-Eleven's franchisees.

1. Know the rules and what's at stake.

Employers big and small must verify, through what is called Form I-9, that an individual they plan to hire or continue to employ in the United States is authorized to work here. Failure to do so exposes the employer to civil and criminal sanctions. And these penalties can be substantially more than a slap on the wrist, said Harry Joe, a partner at Dallas-based global business immigration law firm JMO Firm.

For example, last September, Pennsylvania-based tree removal ­company Asplundh Tree Expert  had to pay $95 million to the ­federal government after admitting to ­employing undocumented immigrants. As part of Asplundh's guilty plea, the company had to pay $80 million in criminal forfeiture to the government as well as an additional $15 million to satisfy civil claims for ­failure to comply with immigration law. 

In a statement issued by the company in September, Asplundh CEO Scott Asplundh said: “We accept responsibility for the charges as outlined, and we apologize to our ­customers, associates and all other stakeholders for what has occurred. Consequently, the circumstances and practices of the past, which have given rise to the investigation, have been addressed and eliminated going forward.”

Nevertheless, Asplundh's penalty, which federal prosecutors said is the largest ever in an immigration-related case, sends a strong, clear message that employers should not ignore, Joe said.

“Sessions strongly believes in becoming more criminally enforcement-minded with regard to immigration violations, and one of those areas involves the knowing employment of unauthorized workers,” he said. “Counsel needs to be aware of this and shouldn't simply sit back and wait for a notice of inspection to be served.”

This is particularly true in industries where there is high turnover and the use of lower-paid hourly workers, Joe added.

2. Prepare before the raid. 

Employers such as the 7-Eleven franchisees who are served with a notice of inspection are entitled to 72 hours to produce I-9s that were completed in the last three years, provide a current list of employees hired in the last three years and a current list of employed workers, Joe said.

In practice, U.S. Immigration and Customs Enforcement officials who conduct these I-9 audits usually limit their review to current employees, he added. While employers may waive the 72-hour time period, they should not—but instead should apply for an extension of time, Joe said.

Gathering all the required paperwork may not be a problem for larger companies with centralized headquarters, but in smaller businesses, the documents may be scattered in various facilities nationwide, said Matthew Dunn, partner and co-chair of the immigration group at Kramer Levin Naftalis & Frankel. Such companies should consider centralizing all such paperwork so that it is readily available and so that they can perform audits of themselves, he added. 

“Go through [the documents] and look at your population to get a sense of what your exposure is and where the weak links are,” Dunn said. Dunn also recommends that employers consider implementing an electronic I-9 system.

In addition to self-audits, ensuring that your manuals, policies and procedures are not only in place but also being implemented and followed is also crucial at this stage, Lopez said.

“Good-faith compliance is what you need,” he said. “You want to do everything you can to show that you're trying to do the right thing.

3. Ensure proper training on I-9 procedures.

Lopez said that he usually sees I-9-related errors not at the corporate level, but rather at the field level, such as at the retail store or manufacturing plant.

In these cases, proper completion of the I-9 form is “one of multiple tasks [that supervisors there are undertaking], and often they don't see the I-9 process as that important,” he said. “You have to make sure those weak points are being addressed.”

4. Do not over-document.

Requesting certain workers to produce more or different documents than would be requested of other workers is prohibited under the Immigration and Nationality Act, Joe said. Such conduct exposes employers to claims of discrimination in the I-9 verification process, he added.

“Because we are in such a hot climate right now, there may be a tendency to over-document, but that could amount to [prohibited] document abuse,” Joe warned.