Copland and Brenner

Table of Contents

1. Enforcement Action Draws Praise, Criticism
2. In Brief: Recent Developments

1. Enforcement Action Draws Praise, Criticism

   On May 12, U.S. Immigration and Customs Enforcement (“ICE”) executed a criminal search warrant at Agriprocessors, Inc., in Postville, Iowa, in which hundreds of workers were arrested and charged with a variety of offenses involving fraudulent documents and immigration violations. The search warrant, issued by the U.S. District Court for the Northern District of Iowa, was based upon the 57-page affidavit of an ICE Senior Special Agent. Included among the “items and persons to be searched for, identified and/or seized” were “[a]ll 695 people on the attached list for whom there is a criminal complaint on file, and any identification documents pertaining to those people.”

   In describing the company, the affidavit states that “Agriprocessors is in the business of slaughtering and processing of kosher and non-kosher meat products. In its advertising, Agriprocessors claims to be the largest kosher slaughterhouse in the nation,” and “processes beef, poultry, chicken, veal, lamb and turkey.” The affidavit reveals what appears to have been an extensive investigation into practices of Agriprocessors and was based in part upon information from unidentified sources, including a former supervisor with the company. There is no finding against the company with respect to the allegations in the affidavit, and any person or entity is to be considered innocent unless guilt is established in an appropriate venue. Factual allegations regarding alleged improprieties by Agriprocessors, as set forth in the ICE Senior Special Agent’s affidavit, are described below.

   One source “described a conversation with the Agriprocessors Human Resources Manager at her office concerning three separate social security cards from three separate employees that contained the same social security number,” and that the manager “laughed when this matter was brought to her attention.” The same source reported a conversation with the HR Manager “regarding Agriprocessors employees’ taxes and the fact they were deducted and deposited and placed in bank accounts belonging to an unknown person or persons.”

   According to the affidavit, eight other sources acknowledged having presented a fraudulent “green card” to Agriprocessors in connection with completing Form I-9; seven of whom also presented fraudulent Social Security cards. Another source, deemed credible on the basis of information provided in prior investigations, provided information indicating that illegal workers signed on and off the job differently, wore different color hats, and were issued paychecks in a different color than those who provided proof of lawful employment, or were paid in cash.

   The affidavit states further that ICE had previously obtained “from law enforcement sources” information about numerous Social Security Administration letters to Agriprocessors, indicating that Social Security numbers and names reported on Forms W-2 did not match. Letters from the SSA “stated there were at least 500 social security number discrepancies for employee records relating to tax year[s]” 2001 – 2005. And, “[o]n February 20, 2008, ICE agents received social security ‘no match’ information from the SSA for 833 Agriprocessors employees suspected of using invalid social security numbers or social security numbers belonging to other real people. These 833 employees were all reported as having earned wages while working at Agriprocessors during the third quarter of 2007.” Additional allegations involved the affiant’s belief that illegal workers were exploited by being pressured to purchase automobiles from a specific seller, and “there is probable cause to believe an Agriprocessors supervisor has assisted, for a cut of the proceeds, illegal aliens in obtaining false documentation in relation to purchasing vehicles, and thereby has aided in harboring the illegal aliens.”

   The enforcement action capped off months, if not years, of difficulty for the company, some of which is referenced in the affidavit. For example, Agriprocessors is described as having been issued 39 citations of state workplace safety and health standards around March 2008, 13 serious health violations in February 2008, and 26 citations from an inspection in October 2007. OSHA records are cited as revealing no fewer than 20 violations at the Postville plant between April 2001 – February 2006, 12 of which were identified as serious. A July 7, 2007 article in The Washington Post is described as reporting that “some conservative rabbis who toured the plant were shocked.” And in March 27, 2007, more than 20 current and former employees filed suit against Agriprocessors alleging violations of the Fair Labor Standards Act, which was settled out of court.

   Additional discussion of the company’s problems is available on the internet at www.eyeonagriprocessors.org, which describes itself as “a web site created and maintained by the United Food and Commercial Workers (UFCW) International Union as a public service for consumers, retailers, policymakers and the media.” Among the materials there are the following:

   Letter of K’hal Adath Jeshurun dated December 28, 2007: the letter advised the company that its decision set forth in a letter dated October 16, 2007 – “to terminate [its] supervision of all Agriprocessors’ operations effective April 16, 2008” – would not be rescinded.

   Article in The Jewish Daily Forward , dated January 9, 2008: “Last week, a federal court of appeals rejected AgriProcessors’ claim that workers in a Brooklyn distribution center should not be allowed to unionize because many of them are undocumented aliens. The decision ended a two-year court battle.” In Agri Processor Co, Inc. v. National Labor Relations Board , the court stated that “[t]he company argues that undocumented aliens are prohibited from unionizing because they do not qualify as ‘employees’ protected by the National Labor Relations Act. Because the company’s argument ignores both the Act’s plain language and binding Supreme Court precedent, we deny its petition for review.”

   Link to a Human Rights Watch publication, Blood, Sweat and Fear, Workers’ Rights in U.S. Meat and Poultry Plants : the report does not specifically mention Agriprocessors, but is an indictment of the “modernization” of the meatpacking industry and notes that current practices harken back to Upton Sinclair’s novel, The Jungle . In describing Sinclair’s 1906 classic, the publication states: “Inside the plants, workers faced constant wage cuts, production line speedup, injuries and disease, and instant dismissal and blacklisting if they protested conditions. Outside, they lived with no medical care, no education, and no decent housing. Rudkus [the central character] and his coworkers were ‘aliens’ both legally and culturally: not citizens, unable to speak good English, ignorant of their rights, and afraid to turn to governmental authorities for help. A century later, abusive working conditions and treatment still torment a mostly immigrant labor force in the American meatpacking industry.”

   Many of those charged with document and immigration violations have already gone through proceedings in federal court and/or U.S immigration courts. Organizational views on the appropriateness of prosecutorial actions, not unexpectedly, reflect a wide variance associated with their own interests. A letter by the President and Executive Director of the American Immigration Lawyers Association to DHS Secretary Michael Chertoff and Attorney General Michael Mukasey expressed concern at “the apparent disregard of the rights to meaningful assistance of counsel and due process in the aftermath of the ICE enforcement operation conducted at the Agriprocessors,” and asked “that these types of operations cease and that immigration laws be enforced in a manner that is effective, humane, and respectful of the basic rights and freedoms that form the foundation of our democracy.”

   A letter by Change to Win, an organization consisting of seven affiliated unions, sees things differently, noting that “[a]s a result of the raid, a series of shocking labor violations have been brought to wide public attention. Potential labor law violations include child labor, wages far below the minimum wage, lack of bathroom access during 10-hour shifts, sexual and physical abuse of employees and failure to compensate employees for overtime.” Change to Win stated that it is “calling on the responsible state and federal agencies to investigate and prosecute this renegade employer to the fullest extent of the law.”

   And therein, perhaps, lies the underlying issue. As long as U.S. employers are willing to engage in egregious conduct such as that alleged against Agriprocessors, there will continue to be an economic draw of illegal aliens to the U.S.A. Clearly, fear of apprehension and deportation is not stemming the tide. As long as employers are not prosecuted for such conduct, they will continue to profess ignorance or deliberately defy employment verification requirements that have been in place for 22 years.

2. In Brief: Recent Developments

   Chicago Lockbox change of address: In an Update on its home page on May 28, U.S. Citizenship and Immigration Services (“USCIS”) changed the address for its Chicago Lockbox, where most family-based petitions and applications are filed. The agency advised that the address for Post Office Box deliveries is the same; however, those using private courier services such as Federal Express or UPS should now send their petitions and applications to:

   U.S. Citizenship and Immigration Services
   Attn: (Insert information from form instructions)
   131 South Dearborn, 3rd Floor
   Chicago, IL 60603-5517

   The Update notes that “[e]xpress courier services have agreed to forward packages to the new site for 90 days (until Aug. 24, 2008). During this transition period, USCIS will accept and process without delay all cases otherwise properly filed.” Because approved form versions, filing jurisdiction and filing fees are subject to frequent change, without notice, anyone submitting a petition or application with USCIS is well-advised to check the agency’s home page immediately prior to any filing to confirm current applicable instructions.
   
   Settlement in Kaplan, et al. v. Chertoff, et al. : USCIS will expedite applications for adjustment of status (Form I-485) and naturalization (N-400) of current or former Supplemental Security Income beneficiaries if an application has been pending for more than six months. “Expedited processing includes USCIS requesting an accelerated FBI Name Check and prioritizing any USCIS internal actions, such as scheduling an interview.” Questions and Answers released by USCIS may be found online at the agency’s Press Room, at www.uscis.gov.

   Proposal to extend NAFTA employment period: By a proposed rule published in the Federal Register on May 9, 2008, USCIS seeks to increase to three years the maximum period of admission, readmission, and extension of professionals seeking Trade NAFTA (“TN”) status, in cases involving Canadian and Mexican citizens. Currently, regulations limit such TN professionals to one-year periods of admission. Any implementing final rule will follow consideration of comments that must be submitted by June 9, 2008.

   Visa Waiver Program advance travel authorization: The Visa Waiver Program (“VWP”) allows eligible nationals of certain countries to travel to the U.S.A. for tourist or business stays of less than 90 days without obtaining a visa. DHS anticipates November 2008 publication of a rule concerning an Electronic System for Travel Authorization (“ESTA”) for VWP travelers to the U.S.A. ESTA was mandated by an August 3, 2007 statute amending the Immigration and Nationality Act, and will screen travelers via an online application requiring the same data now provided on Form I-94W. Notice in the Federal Register will provide a 60-day window until mandatory implementation, anticipated on January 12, 2009. Reciprocal requirements of U.S. citizens by VWP countries should be expected. Additional information is available on the DHS web site, at www.dhs.com.