The fiscal year just ended for Immigration and Customs Enforcement (ICE), and the numbers for FY2008 were astounding. In fact, ICE reached record-breaking levels in its enforcement efforts. Specifically, the number of worksite enforcement actions increased, as noted by the 5,173 administrative arrests of undocumented workers and 1,101 criminal arrests — the majority from employers in the meat and poultry industry. ICE did not stop with just workers but also criminally charged 135 business owners, managers, supervisors and human-resources employees. To show how serious ICE is about its enforcement actions, seven companies were barred from contracting with the federal government as a result of hiring workers lacking employment eligibility. Beginning in 2006 with Swift and continuing with the October 2008 raid of House of Raeford, the lesson is simple — employers must combat identity theft or risk an ICE raid.

E-Verify is not enough

Identity theft was a common denominator among companies raided in 2008. Although E-Verify has become a popular program for employers who are serious about complying with immigration laws, it does not detect the use of fraudulent documents and stolen identities. E-Verify is a free, Web-based system that verifies a new hire’s identity and work authorization status against Social Security Administration (SSA) and Department of Homeland Security (DHS) records. Employers who use E-Verify in good faith and hire individuals who pass E-Verify that are later found to be undocumented receive criminal and civil immunity. However, DHS Secretary Michael Chertoff has stated that E-Verify is not a “magic bullet for every kind of problem.”

A “problem” facing employers is the rampant use of counterfeit identity documents to circumvent immigration laws. I actually have firsthand knowledge of the sophisticated and systematic way in which document vendors work. To assess the document vendor system, I went undercover and witnessed a system that generates millions if not billions of revenue from breeding fake documents. I saw a document vendor ask an immigrant where he wanted to work, and then the document vendor issued authentic-looking identification and a Social Security card for use with the I-9.

Employers must rely on the genuineness of the documents for their new employees when completing the I-9 form. Sometimes the employee presents a Social Security card (a List C document on the I-9) that belongs to a United States citizen or legal permanent resident.

While the employer complies with immigration laws by completing an I-9, there is the likelihood that ICE will still catch wind of any undocumented workers using stolen identities. ICE learns of this when the victims of the identity theft attempt to resolve the problem either by contacting the employer directly, local law enforcement, or even ICE.

Even if the victim of identity theft does not contact ICE directly, ICE frequently works with law-enforcement agencies such as the SSA, Federal Trade Commission (FTC), the Office of Inspector General and state labor agencies. In 2007, several employers were targeted by ICE through the use of undercover agents posing as undocumented workers, analysis of wage reports where the Social Security number failed to match SSA records, and tips from identity theft victims who had first attempted to resolve the issue with the employer but were ignored.

Employers should not only be wary of federal immigration enforcement efforts. A growing trend among local and state governments is to take some immigration enforcement actions into their own hands. Going into fiscal year 2009, ICE raids on employers will clearly increase. In October 2008, Chertoff gave a “State of Immigration” speech, in which he reiterated that worksite enforcement actions were a “sustainable” and “long-term” project. The emphasis and commitment Chertoff places on worksite enforcement actions is evident in the $34 million budget allotted for FY2009, up from $15 million for 2008.

Onsite Anti-Identity Theft

With such increased vigilance, employers need to take a strategic and proactive approach to comply with immigration laws. This approach will earn the employer a good faith defense, and it is where OAT comes in.

The Onsite Anti-Identity Theft (OAT) initiative offers employers a well-rounded immigration policy. After all, E-Verify is not a “magic bullet” for solving all the problems arising from illegal immigration. A company’s ability to identify individuals who may be using stolen identities and properly respond to these scenarios will result in improved immigration compliance. OAT can be implemented either internally or with the guidance of legal counsel, and it has been successful for employers in terminating individuals using stolen identities for employment purposes. By terminating these employees, the company decreases the possibility of landing on ICE’s radar screen and making national headlines.

Materials needed for OAT include the employee’s application, the I-9, and supporting documentation. Employers should also print out the latest payroll information to ensure there are completed I-9 forms for all current employees, and to separate the I-9s for terminated individuals and retain for the required one- or three-year period. An employer can implement OAT by focusing on these six steps:

Complete applications: The first lesson learned from 2008 should be to ensure applications are completely and accurately filled out by applicants. The application process is important because it is the first step in connecting the dots and finding congruence in the information provided by the employee. A complete application will provide a “life history” for the individual as most applications ask individuals to list the city and state of their education and work history.

Social Security Number congruence: Armed with the application, review the employee’s Social Security number (SSN) to ascertain the state of allocation. The SSA publicizes the first three digits of the SSN by state of origin or issuance at ( By knowing the issuing state for the SSN, the employer can detect whether there is a discrepancy in the information provided by the applicant, or if it matches the life history provided by the employee on their application.

For example, an individual who lists a recent work history in Mexico and a SSN issued in Alaska may merit additional attention such as a follow-up interview. The employer should ask some questions to determine whether the individual has any ties to Alaska. The individual who fails to indicate any ties to the SSN issuing state (in this case Alaska) should then be referred to SSA for verification to resolve the issue.

Comply with anti-discrimination laws: The review process is simple with the proper training, but remember that in complying with immigration laws, companies have to comply with other federal laws, such as anti-discrimination laws. As part of OAT, we generally provide employers with training on conducting job interviews and examining employment applications for congruency between the SSN and life history. We also provide updates on recent trends in stolen identities.

Puerto Rican SSN is indicator of fraud: When ICE raided Swift, it found several Guatemalans who used the identities of Puerto Ricans for employment purposes. Had Swift applied OAT to assess indicators of identity fraud among its workforce, the company would have noticed that the life history of these Guatemalans did not match, or was not congruent, with a Puerto Rican-issued SSN. This is not to say that employers should immediately be wary of workers who are of Hispanic origin as there is a potential national discrimination liability from singling out Hispanics.

As stated before, I personally visited the bane of many of my clients’ conundrums during my undercover experience. At the deceptively legitimate offices of document vendors, several of the “buyers” originated from neighboring Mexico, Brazil, Vietnam and even Eastern Europe. The common denominator was that these individuals were all in this country without proper work authorization, so they resorted to purchasing valid identities. Through the innovative approach found in OAT, the employer is able to identify individuals — whether Hispanic or non-Hispanic — who may be using a stolen identity for work purposes.

Address identity theft complaints: Another aspect of OAT is to investigate complaints of identity theft. The biggest mistake an employer can make is to let Jane Doe’s claim that someone is using her SSN to work for that employer, go unnoticed or unreported. Why? Jane Doe may decide to report the identity theft with FTC or local law enforcement — which could escalate what could have been an internal investigation to an ICE raid.

Scrutinize hiring personnel: By the same caveat, do not ignore those individuals who have hiring authority. If human-resources personnel are the ones choosing to ignore identity theft complaints, then the employer needs to ensure the HR department receives proper training and applies the training consistently. Most importantly, the purpose of OAT is to examine the company’s internal and external vulnerabilities in the hiring of individuals using stolen identities. Therefore, I usually recommend employers to thoroughly review their hiring personnel to ensure HR is not part of the problem, but part of the solution. Employers can have the best immigration policy but the worst enforcers, especially if someone in HR hires individuals who confess to using borrowed or purchased documents, or if someone in HR is a document vendor.

By using OAT, employers can identify potential problems with their current immigration policies and practices and resolve them internally. Employers cannot face the type of public scrutiny the alternative would bring about with the current state of the economy. Therefore, it is strongly advised that employers in the meat industry re-examine their immigration policies with legal counsel and take the steps necessary to ensure compliance. It is a wise business decision to invest in an external team to audit the company’s immigration policies rather than be susceptible to public demise.