Copland and Brenner

Table of Contents

1. I-9 Program: Not Too Swift

1. I-9 Program: Not Too Swift

   December 12 broke cold and hard for Swift & Company, the world’s second largest beef and pork processor, as agents from U.S. Immigration and Customs Enforcement (“ICE”) and other agencies swarmed over production facilities in six states. The raids followed a tangled history of the company’s immigration-related matters, including a settlement after allegations of document-related discrimination, its participation in the so-called “Basic Pilot” program to verify employment eligibility, and a last-ditch effort to enjoin the government from conducting the raids.

   The investigation: It was in February 2006 that ICE began an investigation into allegations that the identities of U.S. citizens had been stolen, and that the victims’ Social Security numbers and identity documents had been used to gain employment at Swift & Company. According to an ICE press release of December 13, its investigation “uncovered criminal organizations around the country that traffic in genuine birth certificates and Social Security cards belonging to U.S. citizens. In recent months, ICE agents have arrested several members of these organizations in Minnesota, Texas, Utah and Puerto Rico. In some cases, these organizations have stolen legitimate identity documents and Social Security cards from unwitting U.S. citizens. In other cases, they have purchased these documents from U.S. citizens willing to sell their identities for money, including homeless people and individuals in jail.” See http://www.ice.gov/pi/news/newsreleases/articles/061213dc.htm.

   As ICE explains, its “agents learned that many of these genuine identity documents were trafficked to locations around the country and sold to illegal aliens who used them to gain employment at Swift. By using valid Social Security numbers and birth certificates of U.S. citizens, these illegal aliens were able to thwart the Basic Pilot Employment Eligibility Verification system (Basic Pilot), a federal program designed to help employers detect unauthorized workers. The agency notes that “Swift has used the Basic Pilot program since 1997.”

   The Basic Pilot Program: U.S. Citizenship and Immigration Services (“USCIS”) and the Social Security Administration (“SSA”) jointly conduct the Basic Pilot Program, which involves an employer’s check of the agencies’ databases using an automated online system, to verify the employment eligibility of all newly hired employees. To participate in the program, an employer must enter into a Memorandum of Understanding (“MOU”) which sets forth the obligations of the employer, USCIS and the SSA after the Employment Eligibility Verification Form (Form I-9) has been completed. By entering into an MOU, an employer agrees that it will not use the Program for reverification purposes, or for employees hired before its MOU is in effect.

   The Basic Pilot Program involves a few deviations from typical I-9 requirements, including the employer’s agreement that it will only accept “List B” documents that contain a photograph. And, if the employer participates in the Basic Pilot Program, a new hire must provide his or her Social Security number in Section 1 of the Form I-9. Significantly, a new hire is not required to include his or her social security number (and an employee cannot be required to do so by the employer) – if the employer does not participate in the Program.

   According to a sample MOU on the USCIS web site, "no person or entity participating in the Basic Pilot shall be civilly or criminally liable under any law for any action taken in good faith on information provided through the confirmation system." However, the "Department of Homeland Security reserves the right to conduct Form I-9 compliance inspections during the course of the Basic Pilot, as well as to conduct any other enforcement activity authorized by law." The sample MOU is available online at https://www.vis-dhs.com/employerregistration/RequestParticipation.aspx?AccessMethod=WEB-BP.

   The media war: An article in the Denver Post , last updated December 14, 2006) states that Swift learned of the investigation in the spring of 2006, and that "the company hired a well-respected immigration and border-security consultant to help it identify illegal employees and avoid hiring new ones." Then, a "letter from ICE to Swift officials obtained [by the Post ] and dated Oct. 25 shows that the company was free to remove illegal workers." According to the Post, the letter states, "'Specifically, at no time has anyone from ICE told any Swift official that they cannot take action against employees who Swift determines, on its own, are unauthorized to work in the United States.'" The article is online at http://test.denverpost.com/portlet/article/html/fragments/print_article.jsp?articleId=4836252&siteId=36.

   The Post quotes Swift's general counsel as stating that "'it wasn't until after the company received that October letter from ICE that Swift developed a plan to question its workers.'" According to the company's general counsel, the internal scrutiny of employee documents led to the disappearance of 400 Swift employees across the nation. Notwithstanding its October 25 letter, according to the Post article ICE faults Swift for proceeding with its internal review: "At a news conference.ICE officials criticized the company for essentially tipping off hundreds, and potentially thousands, of illegal workers to a 10-month identity-theft investigation..Swift's internal investigation 'was well after the time that the company knew that there was a significant problem in their workforce,' said Julie Myers, assistant secretary of Homeland Security for ICE. 'And we regretted that they went ahead and took that action, and they did not talk to us ...'"
   Swift's request for an injunction, reportedly filed on December 4, was denied on December 7. The raids were conducted at dawn on December 12, at six Swift & Company production facilities located in Cactus, Texas; Grand Island, Nebraska; Greeley, Colorado; Hyrum, Utah; Marshalltown, Iowa; and Worthington, Minnesota. In the ICE release of December 13, the agency states that the raids netted "1,282 illegal alien workers on administrative immigration violations at Swift facilities. Of these, 65 have also been charged with criminal violations related to identity theft or other violations, such as re-entry after deportation. Countries of origin of those arrested were: Mexico, Guatemala, Honduras, El Salvador, Peru, Laos, Sudan and Ethiopia; others have yet to be identified. The investigation is ongoing."

   For its part, the company affirms, in a December 12 press release on its web site, that "in 2001 the Department of Justice's Special Counsel for Unfair Immigration-Related Employment Practices brought a complaint against Swift for an alleged 'pattern and practice' of document-based discrimination against job applicants, and sought civil damages of $2.5 million. After two years of cooperation and negotiation, Swift settled the claim, with no admission of guilt, for approximately $200,000." Thus, states the release, the company is aware that "[100]urrent law limits an employer's ability to scrutinize the background and identity of new hires, and - as Swift learned first-hand - employers can, in fact, be punished for probing too deeply into applicants' backgrounds." The Swift press release may be viewed online at http://www.swiftbrands.com/media/releases/2006_12_12_Swift_ICE_Interviews.PDF.

   The bandwagon, Part I: Many immigrant-rights organizations, anti-immigration groups, and all manner of supporters and opponents of the raids have made their positions known. The American Immigration Lawyers Association ("AILA") is no exception. Oddly, though, an AILA Summary of ICE Action at Swift & Co. Facilities (AILA InfoNet Doc. No. 06121359) states that the "investigation is viewed by many immigration advocates as a troubling shift in ICE's tactics, from a strategy focused on worksite enforcement to a new emphasis on identity theft."

   The notion that a focus on identity theft is "troubling" may leave many scratching their heads. This is particularly the case given that ICE itself, in its December 13 release, comments that the use of valid Social Security numbers and birth certificates of U.S. citizens allowed illegal aliens to thwart the Basic Pilot Program. What is interesting about the ICE press release on this point is that the federal government - including Congress and the legacy INS - sought to disallow the use of a U.S. birth certificate for I-9 purposes around a decade ago for the very reasons that are so apparent in the Swift context.

   The bandwagon, Part II: Adding to Swift's woes is a $23 million lawsuit filed in U.S. District Court for the Northern District of Texas, by 18 former employees. According to BusinessWeek.com, the lawsuit alleges that the company conspired to reduce wages, increase its profits and damaged the potential earnings of the plaintiffs by hiring illegal workers. More can be read online at http://www.businessweek.com/ap/financialnews/D8M3HDP00.htm.

   Foot-dragging hall of shame: Those reading along may wish to refer to the most recent version of Form I-9, bearing the legend "Form I-9 (Rev. 05/31/05)Y" in the lower right hand corner. The "updated" 2005 version itself states that it "is the 1991 edition of the Form I-9 that has been rebranded with a current printing date to reflect the recent transition from the INS to DHS and its components." (Use of the word "recent" is relative, since the legacy INS had been dissolved more than two years prior to "rebranding," but we digress.)

   In the rebranded Form I-9, a U.S. birth certificate appears as a List C document (to establish employment eligibility), just as it does in the 1991 version. This, even though Congress, in 1996 , authorized specifically a U.S. Social Security card - and no other document - to verify employment eligibility. Congress left it to the legacy INS to designate other acceptable documents by regulation. In changing the law, Congress noted that birth certificates, " even if issued by lawful authority, may be fraudulent in that they do not belong to the person who has requested that one be issued. " See H.R. Rep. No. 104-469, at 404-05 (1996). (emphasis added)

   In February 1998 - nearly nine years ago - the INS proposed regulations that would, among other things, eliminate a U.S. birth certificate as an acceptable document for employment eligibility. See Federal Register , February 2, 1998. But even now, a U.S. birth certificate continues to appear in agency regulations, and on its Form I-9, as an acceptable document to verify employment eligibility. The agency advises employers, in Employer Information Bulletin 101 (viewable online at (http://www.uscis.gov/files/article/EIB101.pdf), that regulations at 8 CFR 274a.2(b)(1)(v) have "the most up to date list of acceptable documents" - and that list continues to include a U.S. birth certificate today.

   What is an employer to do? Under agency regulations an employer must accept a birth certificate as proof of employment eligibility for I-9 purposes. An employer cannot demand specific documents from new hires, and must accept any documents that reasonably appear to be genuine and relate to the person presenting them. How is any person's birth certificate realistically evaluated as relating to the person presenting it?

   By failing to abide by the will of Congress for a decade , the legacy INS and USCIS have earned a place in the hall of shame. Tens of millions of dollars are being devoted to worksite enforcement activities by DHS, but proposed regulations from February 1998 on a seemingly simple, and very important, matter remain in limbo and leave employers in the lurch. By dragging its heels in eliminating a U.S. birth certificate as proof of employment eligibility - a document it acknowledges as problematic, the government itself is at least partially to blame for the woes of the company and its stakeholders. Swift & Company is presumably aware of this lapse and will take appropriate action.

   And, as for Swift, its December 12 release states that the company "fully supports comprehensive immigration reform to address the significant policy tension that exists between the need for employers to accurately determine workers' eligibility versus the need to address privacy and non-discrimination concerns." Amen.