DEPUTIZING - AND THEN PROSECUTING - AMERICA'S BUSINESSES IN THE FIGHT AGAINST ILLEGAL...

There has been a significant upsurge in the number of federal criminal prosecutions in recent years. In fact, between fiscal years 2000 and 2004, the number of federal criminal cases increased by about one-third.1 This upswing in federal criminal cases was largely fueled by immigration cases.2 Indeed,

Given the growing number of illegal immigrants in America4 and the corresponding political debate about how the federal government should respond,5 it is unsurprising that the Department of Justice ("DOJ") and Department of Homeland Security ("DHS") would place increased focus on immigration cases. What is surprising is the federal government's attempt to deputize America's business community in the fight against illegal immigration while simultaneously treating America's businesses as a favored target of the DOJ's prosecutorial efforts in immigration cases. Recent policy statements from the DOJ and DHS have made clear that the government expects America's businesses to increasingly work together with the government to curb illegal immigration or else face severe sanctions.6 At the same time, the DOJ has refused to collaborate with businesses to address any isolated problems that may arise in their hiring practices, and has sought unprecedented penalties to resolve immigration investigations.7 Indeed, at least one of the businesses that was among one of the first to volunteer for new government programs designed to stem illegal immigration was also among the first DOJ targets for investigation and prosecution when something went wrong in a part of the company. Even when those federal prosecutions have been unsuccessful, the government's charges have led to years of follow-on civil litigation, with attendant costs and distractions for the businesses involved.

In sum, the business community has never been more at risk in immigration matters. The government wants - indeed, demands - that businesses do more to assist the government's compliance efforts. Thus far, however, the government's invitation to work in a closer partnership - one which many business leaders would surely like to accept - has provided businesses with few or no benefits and significant risks.

This Article discusses the paradox in the federal government's attempts to invite closer cooperation with businesses while simultaneously sending the signal that cooperation with the government can be dangerous. It suggests ways that the government could achieve greater results by entering into true partnerships with American businesses. This Article points out several key defenses available to businesses that are charged with failing to comply with America's complex immigration laws, and ways in which companies can avoid becoming the targets of immigration investigations. Finally, this Article reviews the creative civil litigation that is being filed in an attempt to capitalize on the nation's immigration problems.

I. THE BEGINNING OF CORPORATE DEPUTIZATION IN IMMIGRATION AFFAIRS

The federal government's effort to deputize America's businesses in immigration matters began in 1986, when Congress passed the Immigration Reform and Control Act (the "Act").8 The Act has been amended several times as Congress has sought solutions to the nation's immigration problems.9 Under the current form of the Act, businesses are required to examine certain types of identification documents to verify that each job applicant is eligible for employment in the United States.10 Employers are required to retain the "I-9" forms completed in the application process, and may elect to retain copies of the identification documents presented.11 Employing any individual without verifying the individual's identity and employment authorization can subject a business to civil penalties.12 The Act also makes it illegal, among other things, to knowingly hire an illegal alien, or to retain such an individual in employment after learning of his illegal status,13 and businesses in violation of these provisions can be subject to both civil and criminal sanctions.14 In passing this legislation, Congress was clearly trying to curb the flow of undocumented aliens in the United States by deputizing corporate America to reduce job opportunities for unauthorized aliens.15

In theory, complying with this verification process would seem to be fairly straightforward for employers and effective in combating illegal immigration. In reality, however, the process has imposed great burdens and risks on American employers, while failing to prevent the employment of illegal aliens. The main problem is one of counterfeit documents. While American employers are required to visually examine an applicant's identification and employment verification documents (which commonly consist of a driver's license or other photo identification, together with a Social Security card), counterfeit documents are readily available for purchase almost anywhere in America.16

Skeptics may say that counterfeit documents should be easily detected by prospective employers. But from our own experience with immigration-related cases, we can report that the counterfeit documents that are commonly traded on the street often appear as genuine as those issued by government agencies. In fact, in the Tyson Foods case discussed below, even the federal immigration agents and DOJ prosecutors involved in the case had difficulty determining with accuracy which of the suspected illegal aliens were, in fact, unauthorized. Employers can spot fake identification documents that are obvious (e.g., when the document has plainly been altered), but the average American business person is not an expert in document authentication. Moreover, under federal civil rights laws, employers must be careful not to impose higher standards of questioning or document scrutiny on applicants who do not speak English or who are of any particular national origin.17 In sum, traditionally an employer has complied with the Act by asking for identification and accepting IDs that reasonably appear to be genuine.18 An employer can do no more and no less.

Employers' compliance with Congress' verification system is mandatory.19 An employer who fails to comply with the employment verification requirements is subject to a civil penalty of between $110 and $1,100 for each individual violation.20 In determining the amount of this penalty, five factors are considered: the size of the employer's business, the employer's good faith, the violation's seriousness, whether the employee in question is in fact an unauthorized alien, and the history of previous employer violations.21 Additionally, the government often equates a company's failure to verify the employment eligibility of its employees with evidence that the company knowingly hired illegal aliens. Under the Act employers who knowingly hire an illegal alien,22 or retain in employment an unauthorized alien after learning the alien is illegal,23 may be civilly fined between $275 and $2,200 for each illegal alien so hired or retained,24 and the range of prescribed fines increases for repeat offenders.25 Furthermore, the Act makes it a civil violation for anyone, including employers, to "knowingly" "accept" or "provide" any forged or false documents to satisfy any of the INS hiring or employment verification requirements,26 and penalties range from $250 to $2,000 for each forged document violation.27

Congress has also authorized criminal charges-either misdemeanor or felonyfor certain violations of the Act. If an employer is found to have engaged "in a pattern or practice" of knowingly hiring illegal immigrants (or retaining them after learning of their unauthorized status), the Act imposes misdemeanor criminal penalties of up to $3,000 in fines for each unauthorized alien and/or imprisonment of up to six months.28 Furthermore, if the employer "knowingly hires for employment at least ten individuals with actual knowledge that the individuals are aliens" during any twelve-month period, the employer has committed a felony and may be fined and/or imprisoned for up to five years.29

Employers may also be charged with non-employment-specific immigration violations that carry criminal sanctions. For example,

[a]ny person who-(i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry ... (ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise ... (iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place ... (iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law; or (v)(I) engages in any conspiracy to commit any of the preceding acts, or (II) aids or abets the commission of any of the preceding acts30

may be fined, imprisoned, or even sentenced to death, depending upon the particular violation and the aggravating circumstances.31

Furthermore, "[a]ny person who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States, brings to or attempts to bring to the United States in any manner whatsoever, such alien" may be fined and/or imprisoned for up to ten years if the "offense was done for the purpose of commercial advantage or private financial gain."32 Similarly, "[a]ny person who knowingly aids or assists any alien inadmissible under [certain sections]... to enter the United States, or who connives or conspires with any person or persons to allow, procure, or permit any such alien to enter the United States" may be fined and/or imprisoned for up to ten years.33 As discussed in more detail infra, the government sometimes charges employers who have allegedly hired illegal aliens with additional, non-hiring offenses such as these,34 and sections 1324 and 1327 (but not sections 1324a or 1324c) may serve as predicate offenses for a RICO violation.35

II. UNITED STATES V. TYSON FOODS AND THE GOVERNMENT'S INVESTIGATION OF WAL-MART: THE DOJ'S EFFORTS To CREATE INCREASED PENALTIES FOR EMPLOYERS' IMMIGRATION-RELATED VIOLATIONS

Congress has thus specified a myriad set of civil and criminal penalties for various violations of the Act. As with all statutory penalties, the amounts prescribed by Congress are the product of a balance between competing interests and reflect Congress' judgment about the relative seriousness of these offenses in the federal criminal system. Since Congress deputized employers to fight illegal immigration in 1986, the DOJ has applied the Act's penalty provisions to obtain a number of convictions and settlements from employers. However, there is substantial evidence that the DOJ considers the penalties that Congress authorized to be too small and that the DOJ is actively seeking ways to exceed those penalties.

Until Wal-Mart's unprecedented $11 million settlement in 2005, the largest penalty that the DOJ had imposed on any employer under the Act was $2.1 million.36 Although a former record, the $2.1 million payment was actually not far in excess of the well-established level of fines that had been levied in immigration cases.37 In fiscal year 2001 the government levied 292 sanctions against employers for a total of about $1.6 million in fines; in fiscal year 1999, there were 890 sanctions for a total of about $3.7 million in fines.38 However, in contrast to this established level of punishment for immigration-related offenses, the DOJ sought to establish a dramatic new precedent in its investigation and prosecution of Tyson Foods.

The Tyson Foods investigation began in 1997.39 As part of the investigation, undercover federal agents posed as smugglers of illegal aliens, gathered supposed illegal aliens at the Texas-Mexico border, and transported them to various Tyson facilities where the agent tried to lure local managers into hiring the aliens.40 At the close of the investigation the DOJ claimed that the company had hired 136 illegal aliens to work among its thousands of employees at plants in six states.41 The DOJ obtained a thirty-six-count indictment against the company in 2001, alleging various violations of the Act.42 The indictment also alleged that Tyson Foods had created a "corporate culture" that condoned the hiring of illegal aliens.43 Although the government claimed that Tyson had hired 136 illegal aliens, the indictment only named fifteen alleged illegal workers.44

Tyson Foods acknowledged that its hiring process was not foolproof, but it denied that upper management had conspired to break the immigration laws. In fact, the company emphasized to the DOJ (and later to the judge and jury) that management had worked hard to ensure that the Act's requirements were followed at each of Tyson's various facilities by, among other things, voluntarily using a computer-based employment document verification program offered by the government that was designed to increase the likelihood of catching unauthorized aliens seeking employment.45 Only one percent of employers had assisted the DOJ by volunteering for this program, and Tyson was among the first to do so.46 The district judge dismissed twenty-four charges related to immigrant smuggling; and Tyson went to trial in Chattanooga, Tennessee on the remaining counts in 2003.47 The jury - after a mere five hours of deliberation, despite a four-year investigation and seven-week trial - acquitted Tyson of the remaining twelve counts that alleged conspiracy, transportation of illegal workers, and document falsification.48 In sum, the case established that Tyson Foods was innocent on all counts.

As noted below, there are a number of reasons why the DOJ's investigation and prosecution of Tyson Foods never should have occurred and why the DOJ must change its practices if it wants to encourage closer partnerships with American businesses. For current purposes, it is important to note the DOJ's settlement demands in the Tyson case and the theory that prosecutors used in justifying those demands. Prior to the indictment, prosecutors wanted $140 million to settle the case; by the start of the trial, their demand decreased to about $30 million,49 still more than fifteen times the amount of the previous record settlement in a similar case.50

The difference between the DOJ's previous record settlements and the amounts it demanded from Tyson Foods is striking. No application of the Act's penalty provisions could support the government's demands. Accordingly, the government advanced a novel theory to justify its position. The government claimed that illegal aliens are presumably willing to work for substandard wages and that, by allegedly employing 136 illegal aliens in six plants, Tyson Foods was able to pay a below market wage. In other words, the DOJ claimed that hiring a handful of illegal aliens allowed Tyson to "suppress" the wages that it otherwise would have been required to pay to obtain an all-legal workforce.51 The government demanded that Tyson forfeit (to the government) the difference between the allegedly suppressed wages that Tyson paid the workers at the six plants over the course of five years and what it allegedly "should" have paid them.52

Because Tyson was found innocent of the government's charges, the myriad problems with the government's theory were never tested as part of the DOJ's case. However, this did not end the DOJ's quest for markedly higher payments from companies whose workers may have violated the Act. The government's investigation of Wal-Mart provides another example of the DOJ's continued efforts to impose significantly higher penalties on employers who are suspected of immigration violations.

From 1998 to 2003, the DOJ conducted a probe of Wal-Mart's cleaning contractors and concluded that Wal-Mart's contractors knowingly hired undocumented workers at more than 1000 stores.53 In October 2003, federal agents raided sixty-one Wal-Mart stores in twenty-one states and arrested about 245 illegal immigrants who had been employed by the contractors.54 Following the raids, Wal-Mart entered into an $11 million settlement agreement.55 Although Wal-Mart did not admit to any wrongdoing in the agreement and stated that it was not aware that its contractors were hiring illegal workers, the company did acknowledge that it had failed to have proper procedures in place to identify whether its contractors were complying with immigration laws in hiring cleaning contractors.56 It also agreed to implement a compliance and training program to establish a means to verify that its independent contractors were taking "reasonable steps" to comply with immigration laws and to provide all current and future store managers with training on immigration employment laws.57 The twelve cleaning service companies used by Wal-Mart that actually hired the illegal aliens forfeited an additional $4 million and pled guilty to criminal immigration charges.58

The government's $11 million settlement with Wal-Mart is by far the largest civil settlement ever in a case involving alleged hiring of illegal immigrants.59 Because the DOJ said that it suspected violations of the Act at 1000 stores, the higher amount could have reflected simply an application of the Act's penalty provisions to a broader set of facts. Yet the DOJ went out of its way to rebut this conclusion, and clarified that settling with Wal-Mart for this record sum is indicative of the DOJ's intent to secure higher payments from employers in immigration investigations. The spokesman for Immigration and Customs Enforcement ("ICE") at the Department of Homeland security, Manny Van Pelt, stated of the Wal-Mart settlement: "It shows we're going after bigger, bigger money."60 Van Pelt elaborated: "We may have smaller investigations, but we're going for a larger breadth of investigations and bigger civil settlements and criminal fines."61

III. THE GOVERNMENT PROPOSES INCREASED COOPERATION WITH AMERICAN EMPLOYERS

Undoubtedly, the vast majority of American businesses want to avoid employing illegal aliens and would be glad to work cooperatively with the federal government (as long as the government does not unduly shift the costs of immigration enforcement from tax coffers to the expense ledgers of private businesses). As noted above, DOJ and DHS officials have recently made a number of statements about seeking an improved working relationship between government and business in fighting illegal immigration. Commenting on the Wal-Mart settlement, Michael Garcia, Assistant Secretary for ICE stated:

This case breaks new ground not only because this is a record dollar amount for a civil immigration settlement, but because this settlement requires WalMart to create an internal program to ensure future compliance with immigration laws by Wal-Mart contractors and by Wal-Mart itself. ICE is committed to not only bringing charges against companies that violate our nation 's immigration laws, but also working with them to ensure that they have programs in place to prevent future violations.62

DHS Secretary Chertoff has made similar statements and has overtly recognized the concern that employers have in further investigating employees who were hired with what reasonably appeared to be authentic employment documents when at the same time they are also required to obey the nondiscrimination laws.63 Because of the problem of forged identification cards, Secretary Chertoff has proposed that the government provide employers with "tools" to more accurately verify the actual employment status of each job applicant.64 That way an employer could know with certainty whether the documents that an applicant presents are genuine.

But the government's actions have contradicted these statements. In fact, as noted above, the DOJ has been testing a prototype of the "tool" that Secretary Chertoff mentions for a number of years, but thus far the DOJ has not worked in partnership with the companies that volunteered to develop that tool. Starting in 1997, the government encouraged employers to volunteer to participate in what was called the "Basic Pilot."65 Each company that volunteered was given computer equipment that would allow its human resources personnel to check the Social Security numbers provided by applicants against the federal government's databases.66 Accordingly, job applicants were required to present a photo ID and a Social Security card or Alien Registration card with a number that matched the information on the photo ID. The government hoped that this would make the process of producing fake documentation much more difficult, since a counterfeiter would need to duplicate an existing person's correct identity rather than simply generate a fake name and a relatively random Social Security number.67 Employers volunteering for Basic Pilot bore their own start-up and operating costs.68

Tyson Foods was one of the first companies to volunteer for Basic Pilot.69 Tyson's management provided training for HR managers throughout the company and made compliance with the program mandatory. Tyson included the Basic Pilot program in its award-winning70 corporate compliance program.

And when Tyson's compliance program independently uncovered evidence that some local employees in an Alabama plant were trafficking in false documents, Tyson alerted the government and worked with the government to investigate (this investigation was independent of the DOJ's then-secret undercover investigation of Tyson).71 In sum, Tyson could not have done more at the level of senior management to embrace the government's invitation to enter into a cooperative partnership to prevent and detect the employment of illegal immigrants. While all of this was occurring, however, DOJ prosecutors and undercover immigration agents were simultaneously trying to lure a handful of Tyson's local managers into violating the Act.

When the facts of the government's investigation came to light, we requested a meeting with Assistant Attorney General Chertoff, who then headed the DOJ's Criminal Division. We reviewed Tyson Foods' record of partnership in Basic Pilot, the efforts of senior management to prevent violations of company hiring policy at the local level, and the disparity between the allegations of 136 alleged illegal hires (among tens of thousands) and the government's demand for $140 million. In this context, all of the company's efforts and expense to implement Basic Pilot and the company's compliance program came to nothing. Mr. Chertoff rebuffed our presentation, endorsed the DOJ's novel "wage suppression" theory and authorized Chattanooga's U.S. Attorney's Office to proceed to trial against the company based on the actions of a few local employees.

In light of this history, how can the government convince employers that increased partnership with the government in programs similar to Basic Pilot will be advantageous (or at a minimum not harmful) to the company? We believe there are some concrete assurances that the DOJ and DHS can and should offer and that business leaders should demand.

First, the government should expressly commit that it will work in partnership with companies that adopt new and more effective measures to avoid hiring illegal aliens. This commitment would include reassurances that the government will recognize the efforts of senior management to implement new policies and procedures company-wide and will look primarily to those company-wide efforts, rather than to any local violations of company policies, in deciding whether a company is complying with immigrations laws.

Second, the government should reassure its partners that it will not play "gotcha" with companies who voluntarily adopt additional policies and practices to prevent the hiring of illegal aliens. The fact that the DOJ was attempting, as part of an undercover investigation, to lure Tyson's local managers into hiring illegal aliens while the company was volunteering for the Basic Pilot program obviously deters businesses from helping the government.72

Finally (and perhaps most importantly), the government can commit to communicating with its business partners about any suspected local breakdowns in the hiring process, rather than opening a covert investigation in response to hiring issues.73 In the trial of the Tyson case, we put the most senior government investigator on the stand in part to make the point that the expense and disruption of investigations and prosecutions are unnecessary when a company's management is committed to resolving any lapses or violations of hiring policy. The following is an excerpt of the testimony:

Q: (Mr. Green): And if you had called someone at Tyson Foods to tell them that you on behalf of the Immigration Service felt that there may be some problems or issues at [a local Tyson plant], do you have any reason to believe that Tyson Foods would not have immediately attended to your message, would not immediately have entered into a cooperative effort with you to figure out what was going on there and solve it?

A: (The federal immigration agent): No sir.

Q: You could have gone to a pay phone and put in two quarters and made that call to Tyson Foods, right?

A: True.

Q: What do you think this investigation has cost the citizens of the country, the taxpayers of the country? More than the 50 cents?

A: Definitely more than 50 cents.

Q: Millions and millions, right?

A: A couple of million.

Q: [It could] have been avoided with a phone call to the company, isn't that right?

A: True.74

Partnership is a two-way street, and governmental cooperation with companies can be much more effective and efficient in stemming the employment of unauthorized workers than covert investigations.

IV. PLAINTIFFS' LAWYERS JOIN IN: IMMIGRATION OFFENSES ARE ADDED TO RICO

The government's mischief with its "wage suppression" theory did not die when the jury acquitted Tyson Foods. Plaintiffs' lawyers have adopted variants of the theory and are attempting to extract massive payments from American businesses.

The Racketeer Influenced and Corrupt Organizations Act ("RICO")75 includes a private enforcement tool used by plaintiffs' lawyers that provides for severe penalties for persons who engage in a "pattern of racketeering activity,"76 and the list of illegal acts that constitute a "racketeering activity" is a long one.77 For our purposes, what is important is that in 1996, Congress amended the definition of "racketeering activity" to include, among other things, "any act which is indictable under the Immigration and Nationality Act, section 274 (relating to bringing in and harboring certain aliens),78 section 277 (relating to aiding or assisting certain aliens to enter the United States),79 or section 278 (relating to importation of alien for immoral purpose)80 if the act indictable under such section of such Act was committed for the purpose of financial gain."81

In particular, it is important to reiterate that section 274, among other things as discussed supra, makes it illegal for "[a]ny person..., during any 12-month period, [to] knowingly hire[] for employment at least 10 individuals with actual knowledge that the individuals are [unauthorized] aliens."82

With this 1996 amendment to RICO, Congress further raised the financial stakes for corporate America with respect to certain immigration violations. Besides RICO's severe criminal penalties,83 RICO's civil penalties are a financial trap for the unwary company, allowing private plaintiffs to collect treble damages, plus the cost of the suit and attorneys' fees.84 Furthermore, the court can order the defendant to divest itself of any interest in the enterprise, impose restrictions on future investments or activities, and even order the "dissolution or reorganization" of the enterprise.85 In short, the losing corporate defendant in a RICO case can be forced to provide high levels of compensation to the plaintiff, be restricted from engaging in future business activities, and even lose its business completely.

With the addition of these immigration offenses to RICO, plaintiffs' lawyers have, not surprisingly, begun to file RICO suits against employers in which they have alleged violations of knowing employment of undocumented workers. In one case, a competitor of a janitorial service filed suit alleging that the defendant's practice of hiring undocumented workers enabled it to underbid competing firms. This case subsequently settled after the Second Circuit held that the cleaning service had alleged a direct proximate relationship between its injury and the competitor's alleged pattern of racketeering activity.86 Four other cases involve classes of current and/or former employees alleging that their employers' practice of hiring undocumented workers depressed the wages of legal employees. One of those cases has ended in an affirmance of the district court's dismissal of the complaint, while the others remain in various stages of litigation.87 Yet another class action case involves a class of undocumented workers alleging that their employer, Wal-Mart, conspired with outside contractors to deprive class members of fair wages. The plaintiffs filed an amended complaint after the court dismissed the initial complaint.88 Finally, a local county government filed suit against a number of employers alleging that the companies conspired with employment agencies to recruit and hire undocumented workers. The county government sought to recover costs related to health services and law enforcement from the employers.89 These cases demonstrate the real risks arising from privately brought RICO suits.

Indeed, the controversy surrounding private plaintiffs using RICO to enforce immigration laws is highlighted by the Supreme Court's recent grant of certiorari in Mohawk Industries, Inc. v. Williams, in which the Court will consider whether a defendant corporation and its agents can constitute an "enterprise" under RICO, in light of the settled rule that a RICO defendant must "conduct" or "participate in" the affairs of some larger enterprise and not just its own affairs.90 The Sixth and Eleventh Circuits have answered affirmatively, concluding that an enterprise can be pled adequately so long as the corporation and the agents in the alleged "enterprise" are "distinct entities," even if those agents are merely performing services for the corporation.91 In direct conflict, the Second, Third, and Seventh Circuits have answered negatively based on the reasoning that because a corporation necessarily acts through agents, an "enterprise" consisting of a defendant corporation and agents acting on its behalf cannot be meaningfully distinguished from the corporation itself.92

V. AVOIDING COURT: PRACTICAL POINTERS To KEEP THE FEDERAL GOVERNMENT AND PLAINTIFFS' LAWYERS AWAY

An ounce of prevention is worth a pound of cure. It is obviously better for employers to take affirmative steps now to avoid having to defend themselves later against federal investigations and prosecutions, as well as private lawsuits.

Consequently, the most important preventive measure that employers can undertake is to ensure that their employees' I-9 forms confirming employment eligibility are timely completed and on file for the appropriate time frames. Employers should conduct regular audits at a random sample of facilities to review a sufficient number of forms to measure the thoroughness of their overall compliance and then take further remedial steps based on the results of the audit. Furthermore, employers should not do a comprehensive re-verification of all I-9 forms because demanding a new 1-9 when one was already lawfully completed - or demanding documentation beyond the requirements of the law - can result in allegations of unfair immigration-related employment practices and document abuse.

In addition, although managers in charge of corporate hiring do not need to become experts in the recognition of fake identification documents, they should be mindful of obviously fake or altered cards. Relatedly, employers should have thorough training in I-9 compliance. Many employers run afoul of the immigration laws not because of any purposeful malfeasance but because applicants fail to complete or inaccurately complete their I-9 forms. Employers should also deal promptly with reports of suspected incidents of illegal status, and make sure that their managers and supervisors are fully conversant with the proper steps and chain of communication necessary if and when such reports come to their attention.

Employers should also establish a periodic review of the status of non-citizen employees to verify that they remain in legal status, check for expiring visas, ensure that their job duties are substantially the same as those stated on the visa petition, and review whether the employees, if in non-immigrant status, should be sponsored for residence. These reviews should be done at least annually, and they can be tied temporally to performance reviews or be done during tax time. However, employers must remain mindful that subjecting non-citizen employees to special scrutiny, or running special checks on the documentation of non-citizens who are current legal employees, may expose employers to the risk of civil rights violations as discussed supra.

In addition to adopting these preventive measures, when using independent contractors, employers should insert language in any contract with them prohibiting the contractors from using unauthorized labor. Some companies have used the Wal-Mart incident as an opportunity to issue a timely reminder to vendors about their obligations to comply with employment and immigration laws. Furthermore, when restructuring, merging, or acquiring, due diligence reviews and checklists should always include items of inquiry regarding the immigration status and employment eligibility of the parties' workforces as part of an overall examination of employee matters. After the merger, the new employer should be sure to retain and store the employees' I-9 forms from the previous employer. The new employer should also make a determination of how much sample auditing it needs to do of the I-9 forms for the newly acquired employees. How much sampling to do post-merger can be determined by the results of the company's preliminary investigation of I-9 forms that occurred during the due diligence period (prior to acquisition).

VI. CONCLUSION

There has been a marked upsurge in prosecutions related to illegal immigration in the last few years. But the government is not merely prosecuting illegal immigrants for immigration offenses; it is reinvigorating its investigation and prosecutorial efforts against corporate America as well. The case studies of Tyson Foods and Wal-Mart show the high stakes that corporate America currently faces in confronting federal prosecutions. Congress first deputized corporate America into controlling the flow of illegal immigration at our nation's borders in 1986-by making it illegal for employers to knowingly hire, or knowingly retain after hiring, illegal immigrants, as well as to fail to comply with the employment verification requirements-and then subjecting employers to stiff civil and criminal penalties for noncompliance. Congress further deputized corporate America in 1996, and subjected corporate America to even higher financial stakes, when it made certain immigration offenses predicate offenses in RICO, and thereby opened the doors to suits from plaintiffs' lawyers for treble damages for having knowingly hired at least ten undocumented workers in a twelve-month period. Given the increasingly high stakes for employers, it is imperative that they expend the resources now to take the preventive measures outlined in this article. To do less will only perpetuate exposure to unnecessary and costly risk.