Simply operating a company in America today comes with the risk of being targeted for an immigration raid. In this episode, we talk about what a company should do in the days of I-9 compliance, immigration raids, and worksite visits.
Employers hire unauthorized people many times without any knowledge of an employee's real legal status. However, there are measures business owners can take to ensure employees are authorized to work in the US.
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David Kelso: Hi and welcome to another edition of OnlineVisas.com, The Immigration Show. I'm your host, Dave Kelso, and here with me is CEO of OnlineVisas.com, Mr. Jon Velie. Jon, how are you?
Jon Velie: Doing great, Dave. How are you today?
David Kelso: I'm doing really well. We've been talking a lot about immigration for businesses in the last couple of episodes. Been learning a lot about it myself.
David Kelso: But you know, you see ICE and deportation and raids in the news lately, and it's kind of a scary thing. And it made me wonder, like if I'm a business owner and I've got 100 people back here that went through my HR department and I don't know them, should I be nervous that ICE is going to come raid my place?
David Kelso: How do I prepare for something like or should I prepare for something like this? And what do I do if they ... I mean, just thinking about my business and ICE makes me very nervous about it. So should I be concerned about this as a small business owner?
Jon Velie: Not just a small business owner, any business owner, right? So what we have in America is somewhere between 11 and 30 million people that may not be here on a lawful status.
David Kelso: 11 and 30.
Jon Velie: Well, and the interesting thing is we don't know what that number is.
David Kelso: Apparently.
Jon Velie: A lot of politics has been focusing on, we shouldn't have illegal people here. That's a bad thing. And you know, you broke a law. So we can't ... There's a lie. There's a crime that's committed. But it's more complicated than that.
David Kelso: It usually is. There's usually some gray area.
Jon Velie: It's more complicated than that. And on a couple levels. Number one, the work relationship is between two different parties. It's between the employer, the American company, and the employee, whether that's an unauthorized worker or not an authorized worker. Not here to condone unauthorized workers or being here without authorization.
Jon Velie: But with that many people in our workforce, to get rid of all of them creates a bunch of unintended consequences.
David Kelso: Sure it does.
Jon Velie: So if you were to pull out 11 to 30 million people from our workforce, you would kill a lot of companies, industries, towns, all those different things.
Jon Velie: But again, let's not be theoretical. Let's talk in more practical method.
David Kelso: Sure.
Jon Velie: What do you do as a worker when these things may come? So the reason where you need to be afraid of it is that we have an administration right now that is saying publicly that we haven't had enough deportation. It's somewhere in the couple a hundred thousand people that have been deported in the Trump Administration's history. And with 11 to 30 million left, the President wants to ratchet it up. It's a political football.
Jon Velie: So you know, what can happen? We're hearing it all the time. Local restaurants have been raided in one town, like bunches of them at a time. What it really does is that people get afraid and so workers don't show up to work.
David Kelso: Right.
Jon Velie: It's not like they're coming and raiding them.
David Kelso: Hurting the business.
Jon Velie: They're just like, "I can't be out in public." And that's where kids are dropping out of school. They're afraid that ICE agents will go to school. Because ICE agents have gone to school, they've followed kids off the bus to homes and taken their parents away.
Jon Velie: And every one of those stories, you know, will rifle through communities. And things will happen.
Jon Velie: So in any case, there are some things to think about as an employer, right? And number one is creating a compliant workforce.
David Kelso: Making sure you're not hiring illegally.
Jon Velie: Right. So there are a couple of things. People will hire unauthorized people many times without any knowledge that they're hiring unauthorized people.
Jon Velie: It's not like there is this scheme that goes on like, "Oh, I want to hire a bunch of illegal people." You know, they're just people. They come in and they meet the qualifications for the job and they do it.
Jon Velie: So where it kind of starts is what's called the I-9 Form and nobody knows what I-9 form was, but every one of us has filled one out.
David Kelso: Okay. So what's an I-9?
Jon Velie: It's in your packet of information when you start on with an employer and you often put in your Social Security card and your driver's license.
David Kelso: Oh, I got to have one form of ID from this column, one form of ID from this column.
Jon Velie: Everybody fills one out, whether you're American or not. Well, so if you're not an American, you can use other things. It can be a visa. Like many of the reasons we've talked about. The H1B, the TN, the non-immigrant visas.
Jon Velie: It can be a green card. For students on their OPT, it's called an EAD card. And for the foreign nationals that come in that are not green card holders, then whenever they update that they do a revised I-9 and things like that.
David Kelso: Okay, sure.
Jon Velie: So one of the things that we do with companies is I-9 compliance. And you know, I bet many proposed clients a bottle of wine, you know, that their I-9s won't be done right. I've gotten a lot of bottles of wine and a lot of clients out of that. Because they're really tricky, believe it or not.
Jon Velie: I mean I had one client that had a Hispanic workforce and all of the workers thought that maiden name was their mother's name. And so every I-9 was wrong. And if your I-9s are wrong, just technically wrong like that, you can get a fine. There are substantial wrongs and then there are technical errors on the I-9.
Jon Velie: So, a substantial wrong is when you lie, when you don't sign it, that sort of thing. So when HR directors or company officials are looking at those documents, they have to remember a couple of important things.
Jon Velie: Number one, they can't ask a foreign national anything more than they'd ask the American. So they look at these documents. And then you have two choices: you can either photocopy the documents and keep them with the forms or not do it, but you can't do it for some and not the others. You have to make a decision where you want to do it or not. I've seen the photocopying come in and help a company that was raided and turned out that a lot of them weren't legal, but they had all that. And we could look at all the copies of the green cards and they looked like regular green cards.
Jon Velie: We actually found one or two but in our audits. But we had turned over those in the process to ICE and ICE actually gave us some time to inform the individual and time to hire, while also letting them work for a little while. It was really amazing for an agency that gets a bad name all of the time, in certain circumstances. Now, this was a while ago. They can work with you. So we worked with them in that circumstance.
Jon Velie: And just an example of that is when we did the I-9s, this company, every one of their I-9s had been done wrong. Again, with the maiden name and all this sort of stuff. We found six or seven individuals that, you know one of them had Enero instead of January on their American green card. That wasn't there. We had to call him in. And you can't just fire them either. You have to say, "Look, we've noticed on your document that there's an issue, why don't you go down and have that fixed."
Jon Velie: The reason you need to do that is because you can violate an employee’s civil rights. And the business can be put at risk if it asks questions to someone, because they may appear to be from another country, that's a national origin violation.
David Kelso: So racial profiling?
Jon Velie: Yeah, you can't do that under the law. And you can get sued for that. You don't want that to happen. And there are probably some attorneys out there that were-
David Kelso: Making some money on that.
Jon Velie: Making some money on that. So also, when you discover things, you can discover a couple of ways, right?
Jon Velie: So if someone comes in, David Kelso comes in, fills out his I-9, he has Social Security number. A no-match letter is when Social Security comes in and says, "Well, David Kelso's Social Security number is different than the one we have on file." So when you get a no-match letter, the key here again is not saying, "You're fired, Mr. Kelso." It's to say, "Mr. Kelso, we've been informed by Social Security that there's a no-match letter. Your Social Security number may not match. Go down to Social Security, see if you can work it out."
David Kelso: Well, that makes some sense, because people get their identity stolen all the time, so you should be able to change that.
Jon Velie: They do, they do. And then that way you can't sue me for treating you badly.
David Kelso: Right.
Jon Velie: And then many times that person just disappears. And then-
David Kelso: So what you're saying is businesses' hands are tied here in a lot of respects. If they get something that looks like a real document, there's really not a lot they can do.
Jon Velie: They have to accept it as a real document. There is what is called 'actual knowledge' and 'constructive knowledge.' So when I get the no-match letter and I've made that decision and it's not resolved and the worker keeps coming in, I may have constructive knowledge at that point.
Jon Velie: Another way you can get actual knowledge is if you come in and I've already gotten your documents and it looks like you're a citizen. And you come in and say, "Can you sponsor my visa?" Then at this point, now I know you're not legal, but you'd already been working here. Now I have actual knowledge.
David Kelso: Right.
Jon Velie: So I can't afford – I can't hire you and you can't work here and you're going to have to go. Right? Hands aren't tied. You just got to know what the laws are.
David Kelso: Right.
Jon Velie: That's what guys like me know. I mean and those situations are important.
Jon Velie: So there are things that we can help companies with, like how to start creating a compliant workplace. One is having an audit of your I-9s. That's one of the first things.
Jon Velie: Another thing is just trying to do things by the book. We've helped companies with that and talk about what they're doing. Another thing is prepping them for raids and not just raids, but site visits.
David Kelso: Right.
Jon Velie: So a site visit isn't a raid. A site visit might be that you're a tech company and you've been filing H1B visas and they may come in to see if that worker is really working there. Maybe you've said "we have some internal projects," and they come in and the office is this big. If you made these allegations then that can be a problem.
Jon Velie: A raid is when they come in and it's a gotcha.
David Kelso: Yeah.
Jon Velie: Now sometimes you'll get a letter from USCIS saying, "We're going to do an I-9 audit." ICE will come in and do an I-9 audit. You have three days to turn over your stuff. What we've done sometimes is gone in and started an audit for them and asked for some time. And sometimes we've gotten it. Sometimes you don't. Where we'll handle it internally and then hand over what we discovered to ICE.
Jon Velie: And sometimes when you're working with officials, that'll help out. So that's one of the things you can do.
David Kelso: So we can communicate? Communicating with ICE on a business point of view. If ICE reaches out to you or if you have to deal with ICE, communicating with them is a very good idea.
Jon Velie: Yep.
David Kelso: Okay.
Jon Velie: That's a good thing. Now another thing is when they raid, though. And we've done some things like that.
Jon Velie: There are employees rights and so you can help your employees' rights. There are a bunch of things out there like Know Your Rights documents. And if you need one of these, we can give them. But you know, if you're stopped by immigration or police, you can hand a card to this officer and say, "I have the right to remain silent." And then the card explains that you're exercising your rights and then you can say, "I'll remain silent or refuse to answer your questions. I'm detained, I have the right to contact an attorney immediately. And I refuse to sign anything without the advice of an attorney."
Jon Velie: Now, I don't suggest you get all of your workers together and you do this, but you might find someone within your company that says, "Let's make sure everybody has these rights cards if something happens." And then that way you're not putting yourself in constructive knowledge.
Jon Velie: So employees have those rights. And then there are certain things that after the ICE raid, you may want to have. We put together these response teams so that deportation attorneys can come help the employees. We help employers, many times, on what they need to do and how they need to handle it.
Jon Velie: One of the things. Let's go back to the raid, is to make sure the raid is being done legitimately. Again, it's just like when the police come to your house. This is the same thing. So you might advise your employees or managers on what to do. You want to examine the warrant. And we can be there for this or you can email it, take a picture of it or text it to us. Those sorts of things.
Jon Velie: Never allow access without a warrant. You don't have to do that. The warrant must be signed by the proper court. Someone comes in and you're in Texas with a warrant from New Mexico. That's not appropriate. Check if it's being served within the permitted timeframes. The warrants are specific on that. Note the scope of the warrant, the area to be searched, and the items to be seized.
Jon Velie: You can immediately contact your attorney if you're there. You can monitor the search process. You can follow these guys around. Make sure you obtain the name of the supervising ICE agent, and the U.S. attorney assigned to the case. You want all of that information if that's happening. Assign the company representative to silently follow each agent around the facility, take notes, and record that agent's actions without interfering.
Jon Velie: And I said two things. Silent and without interfering.
David Kelso: Don't interfere. Don't get in the way.
Jon Velie: Don't fight them. Don't get in a fight. Don't have your people go to jail. Don't go to jail yourself.
David Kelso: Don't get hurt.
Jon Velie: Don't get hurt. Don't get shot. That's probably not going to happen, but you can go to jail if you're saying, "You can't do that. You can't do that," sort of stuff. So if they're going to persist, just make sure you record their actions.
Jon Velie: If the agents want access to locked facilities that are listed in the warrant, unlock them. All right? Otherwise, agents will forcibly gain entry.
David Kelso: Yeah. You'll buy new locks.
Jon Velie: Yeah. Take no actions that can be constructed as inducing perjury, such as telling people to provide false information or documents. Don't do that.
Jon Velie: Those are some things there.
David Kelso: Let them do their jobs and, "Yes, sir. No, sir."
Jon Velie: Yes, but make sure that they're doing the right job and record it. Now you might try to record it on your smartphone or take notes. And you know-
David Kelso: Cover your own assets.
Jon Velie: Police may or may not respond appropriately or inappropriate to that, but you know, you have rights, too. Okay?
David Kelso: But let's talk for just a second. We're talking with Jon Velie, the CEO of OnlineVisas.com.
David Kelso: Let's say you got a business, you have had interactions with ICE, but now you've been raided. You've got the documents, you've seen the warrant, you followed them around and you've not been in the way. What do I do after the raid?
Jon Velie: Okay, so ICE may issue an employee do not rehire list if they find some people who are working illegally.
Jon Velie: The employer may not continue to employ the employee or any worker found on that list. ICE will continue to investigate a company for months or years after, a raid to see if banned employees are returning using different identities. They will check to see if banned employees are placed in a different work site or are assigned to a graveyard shift in order to avoid detection.
David Kelso: Detection.
Jon Velie: So be careful about that. I just suggest don't do it. After a raid, undercover ICE agents may pass as prospective employees to see if they are hired after admitting they lacked work authorization.
David Kelso: So the raid is not going to be your last interaction with ICE?
Jon Velie: Right. It was probably the starting point with ICE. Right? ICE will cooperate and collaborate with other various government agencies such as the IRS and Social Security Administration. So Social Security Administration could be looking out for more no-match letters. IRS, you know, may come after your taxes or whatever.
David Kelso: Right.
Jon Velie: So ICE and the U.S. attorneys will thoroughly review the items seized during the raid. Determine the extent of evidence that exist against the company.
Jon Velie: Now saying all that, just because you're raided, just because you've done an audit, doesn't mean you'll be prosecuted. I've had many instances of helping companies through. One instance at a company, they did their I-9 and they kept copies, all that.
Jon Velie: Even though we did an audit and we corrected all the technical errors. At the end of that, they did not charge them one dollar for the technical errors. They did not prosecute them for having hired people. And they gave them six months to work through their workforce, which I found quite amazing.
Jon Velie: And that was really the relationship that we struck up with the ICE agent. And the ICE agent knew that this client had not, or the employer, hadn't done anything wrong. They just were-
David Kelso: Not intentionally?
Jon Velie: Well, didn't appear to.
David Kelso: Right.
Jon Velie: I think if they thought that they had intentionally done things wrong, then they probably would have prosecuted them. And it was like a $30 million company. I mean it had done good work. And then you know, we helped save that company and got time to do that. Now, they had to work through a new part of their workforce.
Jon Velie: The ICE now may not give you those benefits, you know? You might just get shut down.
David Kelso: But certainly, your relationship and your experience with them and over the years would help in that department?
Jon Velie: Well, it could. And I mean, that's the deal, is we can tell you what to expect.
Jon Velie: So you know, there's things that we can do, as well. You want to have a corporate immigration compliance program. Like, think of it as a business plan for what do you do if the wheels come off the car?
David Kelso: Well, let's say I wanted to get a hold of you to help figure out how to get one of those things?
Jon Velie: Well that's a good place to start.
David Kelso: I want to sit down with an experienced immigration attorney and develop these plans for how to avoid a raid, what to do if I've been contacted by ICE, or what to do if I've been raided.
Jon Velie: Yeah. Well, come to our website OnlineVisas.com. You know you'll be joining about 1,000 people a day who come in and set up a strategy session. We have put on webinars. You know, this thing that I'm referencing right now is a webinar we've done for companies on how to keep the government from knocking on your door.
David Kelso: It's more than just an apple a day, by the way.
Jon Velie: We build your own custom program. We can introduce to deportation attorneys to be ready for that, so that you as an employer, you don't know that these folks are here. But you learn to care for them. And if they're in trouble you could have someone-
David Kelso: Sure. You want to help them.
Jon Velie: ... who is there, available. And then we can be there for the company and then that's where to go. So OnlineVisas.com. Go there. Schedule a strategy session.
David Kelso: Or omission.
Jon Velie: Or omission. Call me at (405) 310-4333. Drop me an email at Jon, J-O-N, at velielaw.com. That's V as in Victor, E-L-I-E-L-A-W, velielaw.com. And we'd be glad to talk with you about your situation, what's going on, your fears, how to make your company compliant and create a really great compliant workforce for you.
David Kelso: And make sure you subscribe to this YouTube channel if you're watching us there. You can also find us on Facebook and LinkedIn. For OnlineVisas.com and The Immigration Show, I'm your host, Dave Kelso. This is Online Visa's CEO, Jon Velie. Thanks for watching.
Jon Velie: Take care.