Between the
Immigration and Naturalization Service
Department of Justice
and the Employment Standards Administration
Department of Labor
November 23, 1998
I. Purpose
The purpose of this Memorandum of Understanding (MOU) is to promote
employment opportunities for, and the interests of, authorized U.S.
workers through:
- fostering appropriate cooperation and coordination between the
Immigration and Naturalization Service (INS) of the Department of
Justice (DOJ) and the Employment Standards Administration (ESA) of the
Department of Labor (DOL); and,
- enhancing worksite enforcement of employer sanctions and labor
standards in order to reduce the employment of unauthorized workers in
the U.S.
To this end, this MOU clarifies the enforcement roles and
responsibilities of each agency in areas of shared authority, ensures more
efficient use of resources, reduces duplication of effort, and improves
communication and appropriate coordination between the agencies.
This MOU affects the following INS and ESA enforcement and compliance
components:
- INS:
Office of Field Operations
Investigations
Border Patrol
Office of Policy and Programs
Office of Business Liaison
- ESA:
Wage and Hour Division (WH)
Office of Federal Contract Compliance Programs (OFCCP)
Where investigative and enforcement jurisdiction is shared between the
signatory agencies, both shall work cooperatively and, in appropriate
circumstances, plan and undertake coordinated or joint activities. The
Federal statutes and Executive Orders provided for in this agreement
include, but are not limited to, the following:
- Immigration and Nationality Act, as amended [Title 8 of the United
States Code, Section 1101 et seq., specifically 8 U.S.C. Section 1324a]
(INS and ESA)
- Title 18 of the United States Code, Sections 911, 1001, 1015, 1028,
1426, and 1546 (INS)
- Executive Order 12989 (INS)
- Fair Labor Standards Act (ESA)
- Family and Medical Leave Act (ESA)
- Migrant and Seasonal Agricultural Worker Protection Act (ESA)
- Davis-Bacon and Related Acts (ESA)
- McNamara-O'Hara Service Contract Act (ESA)
- Employee Polygraph Protection Act (ESA)
- Executive Order 11246, as amended (ESA)
- Section 503 of the Rehabilitation Act of 1973, as amended (ESA)
- Vietnam Era Veterans Readjustment Assistance Act of 1974 (ESA)
District Directors for the signatory agencies shallare expected to
actively identify areas of mutual local enforcement interest and, in
appropriate circumstances consistent with this MOU, plan and develop
coordinated or joint actions accordingly.
II. Goals
The goals of this MOU are to:
- reduce the employment of unauthorized workers in the U.S. and the
consequential adverse effects on the job opportunities, wages and
working conditions of authorized U.S. workers by increasing employers'
compliance with their employment eligibility verification obligations;
- reduce the economic incentives for the employment of unauthorized
workers and the consequential adverse effects on the job opportunities,
wages and working conditions of authorized U.S. workers by increasing
employers' compliance with minimum labor standards;
- avoid the furthervictimization of unauthorized workers employed in
the U.S. by employers which may seek to abuse the enforcement powers of
the signatory agencies to intimidate or punish these workers; and,
- promote employment opportunities for legalauthorized U.S. workers and
improvements in their wages, benefits, and working conditions.
III. Background
Historically, INS and ESA have maintained working relationships in areas
of mutual law enforcement interest. Immigration reform legislation over
the last decade has significantly expanded and intensified this
interaction.
The U.S. continues to face a serious problem of illegal migration as
unauthorized workers are drawn to and remain in the U.S. workplace.
Deterring illegal migration and overstaying of authorized periods of
admission or employment in the U.S. must include reducing the magnet of
employment opportunities through worksite enforcement of both immigration
laws and labor standards. As an essential part of his efforts to reduce
illegal immigration, President Clinton directed INS and DOL to establish
complementary strategies to increase and improve worksite enforcement. The
President's directive requires INS and ESA to enhance their existing
relationships to facilitate identifying high risk industries and
metropolitan zones of deterrence for coordinated enforcement. In addition,
information will be shared, as appropriate, when industries or
occupational settings are identified in which visa overstayers who are not
authorized to work are a common problem.
INS has primary responsibility for enforcing Section 274A of the
Immigration and Nationality Act (INA), the provisions commonly referred to
as "employer sanctions." These provisions are an integral part
of the INS enforcement mission, expanding and supporting the complementary
goal of securing our borders as illegal aliens are often lured to the U.S.
by promises or prospects of employment. Many migrants fall into the hands
of ruthless and exploitative criminal alien smuggling operations and
abusive employers who intentionally violate the law by knowingly employing
unauthorized aliens and subjecting their employees to substandard wages
and working conditions.
Vigorous enforcement of our immigration laws can deter violations of
labor standards by preventing the employment of unauthorized workers whose
willingness to accept sub-standard wages and working conditions
artificially suppresses wages, leads to the degradation of overall
conditions in the workplace, and deprives authorized U.S. workers of
decent job opportunities. Thus, by focusing on employers in industries and
locations with a history of reliance on unauthorized labor, worksite
enforcement initiatives can manifestly increase deterrence of unauthorized
alien employment, remove unauthorized workers from the workplace, disrupt
alien smuggling and harboring operations, and make decent jobs available
for legally authorized workers.
ESA's primary responsibility is the enforcement of labor standards
statutes with the goal of ensuring that all covered workers - irrespective
of their immigration status - are afforded the full benefits and
protections of our labor laws. The INA provides DOL a role in the
enforcement of employer sanctions because vigorous targeted enforcement of
labor standards can serve as a meaningful deterrent to illegal
immigration. It denies some of the business advantages that may be gained
through the employment of highly vulnerable and exploitable workers at
sub-standard wages and working conditions. Labor law enforcement not only
helps ensure fairness and acceptable workplace standards, but also helps
foster a level competitive playing field for employers who seek to comply
with the law. Consequently - consistent with its primary labor standards
compliance mission - in carrying out this MOU, the ESA agencies will take
no action which will compromise their ability to carry out the fundamental
worker protection mission. Likewise, INS will take no action which will
compromise its ability to effectively carry out its primary mission of
immigration law enforcement.
INS and ESA have historically sought to identify appropriate
circumstances warranting efforts to coordinate worksite enforcement
activities in order to achieve a legal workforce that enjoys the full
range of employment standards protections available under law and
Executive Order. This MOU is intended to clarify the enforcement roles and
responsibilities of each agency in areas of shared authority, promote more
effective and efficient use of resources, reduce duplication of effort,
and improve communication and appropriate coordination between agencies.
IV. Implementation
A. National Procedures
Liaison
The Headquarters enforcement/compliance components of INS and ESA shall
maintain liaison concerning matters of mutual interest and jurisdiction,
and shall actively seek to improve communication at all levels of the
organizations. Information sharing at the Headquarters level of each
agency will include cooperation and coordination in the development of
policies, procedures, regulations, enforcement priorities and approaches,
training materials, and activity reports.
In order to implement this MOU, INS and ESA agree to exchange,
periodically update, and disseminate to all their field offices
information concerning office locations and jurisdictional areas of
responsibility of their respective operational field units.
INS shall provide to ESA sufficient quantities of the Handbook
for Employers (M-274) for distribution to all employers inspected
by ESA investigators.
Policy and Procedures
INS has primary responsibility for employer sanctions enforcement,
including assessing civil penalties and initiating legal proceedings under
Section 274A of the INA. In addition, INS has responsibility for
promulgating employer sanctions program policy. Because of possible
resource implications, INS will advise and consult with ESA regarding any
significant proposed changes in the employer sanctions program policy
which may affect ESA activities or policies and, as changes are
implemented, the two agencies will coordinate to modify their implementing
procedures accordingly.
INS and ESA will work to develop criteria and procedures for referral of
suspected violations. Such referrals will be subject to appropriate
tracking and follow-up by the respective agencies.
The agencies will develop and implement policies consistent with INS
Operations Instruction 287.3a that avoid inappropriate worksite
interventions where it is known or reasonably suspected that a labor
dispute is occurring and the intervention may, or may be sought so as to,
interfere in the dispute matter. The agencies will develop and implement
policies concerning circumstances when it is known (or appears) to INS
that a labor dispute is occurring and an INS law enforcement action may be
appropriate at the worksite.
Information Exchange
INS and ESA will promote the exchange of information and interaction
among their respective field offices so as to avoid any extensive
reporting burden on either field staff. INS and ESA shall continue to
examine the possibility of mutual access to any automated information
systems, where such systems relate to the enforcement of statutes of
shared jurisdiction. ESA and INS will exchange periodic reports of
employer sanctions enforcement activities, including data on employer
compliance.
In order to promote more effective communication, INS Headquarters will
provide a database indicating the disposition of INS employer sanctions
cases, including those which were based on ESA-91 referrals. Results of
these cases will be included in the database and the entire database will
be provided to ESA Head-quarters. ESA Headquarters will sort and
disseminate appropriate information concerning INS employer sanctions
cases to its field offices.
Effective inter-agency communication has been essential to the agencies'
relationship; this MOU reinforces the importance of communication and
information exchange. INS and ESA representatives will continue to meet
regularly at both the Headquarters and field levels to identify
appropriate circumstances and explore avenues for coordinated and joint
enforcement efforts. Refinements in enforcement strategies will be shared
between the agencies on a periodic basis. Coordinated enforcement will
seek to maximize the effective use of limited resources while having the
greatest impact on employers who violate immigration and labor laws. In
this regard, INS will share available information with ESA that will would
help identify areas and industries where visa overstayers who may not be
authorized to work are frequently employed.
Training
INS shall assist ESA in revising and delivering employment eligibility
verification training. Staff in local ESA offices will assist INS in
training INS officers to identify suspected violations of labor standards
under the jurisdiction of ESA, as determined to be appropriate. Training
materials and checklists for determining possible labor standards
violations (possibly including "self-audit" tools to be provided
to employers subject to worksite enforcement interventions) will be
prepared by ESA and supplied to INS.
B. Field Procedures
Liaison
Field level liaison between INS and ESA is principally the
responsibility of the INS District Directors/Chief Patrol Agents (or
designees) and the District Directors of the appropriate ESA offices (or
designees). The District Directors of both agencies will identify a
point-of-contact within their respective offices who will be responsible
for liaison and coordination on all information exchange and enforcement
initiatives at the local level.
An important goal of this liaison is the free flow of information
between the agencies and the effective utilization of such information.
The points-of-contact for ESA shall be responsible for ensuring that
information is furnished to INS in a timely manner and that it conforms to
prescribed criteria. The points-of contact for INS shall likewise be
responsible for ensuring that information is furnished to ESA in a timely
manner and that it conforms to prescribed criteria.
When INS receives a request from ESA to review INS records or to
interview an individual in INS custody, it will make every effort to
comply promptly with that request, to the extent permitted by law, upon
presentation of proper credentials by the ESA investigator. When ESA
receives a request from INS to review ESA records, it will make every
effort to comply promptly with that request, to the extent permitted by
law, upon presentation of proper credentials by the INS officer. The
agency making the request will expeditiously follow through on any records
review or interview requested so as not to unduly interfere with law
enforcement activities.
INS and ESA field personnel shall cooperate in identifying and find
appropriate opportunities to coordinate enforcement activities, and - to
the extent that resources permit - shall conduct coordinated or joint
investigations where appropriate, with each agency pursuing violations
within its own jurisdiction. In those circumstances where joint efforts
are not appropriate or possible, the agency conducting the
investigation/inspection will provide the employer subject of the
intervention with compliance information to facilitate any future contact
by the non-participating agency.
ESA Enforcement
In the course of all on-site activities at employers' facilities and
where appropriate in technical assistance activities with
employer/employee groups, ESA staff will advise employers about their
employment eligibility verification and anti-discrimination
responsibilities and distribute copies of the Handbook for
Employers: Instructions for Completing Form 1I-9 (Employment
Eligibility Verification Form) [INS publication M-274] and available
informational material on the anti-discrimination provisions from the
Office of Special Counsel for Immigration-Related Unfair Employment
Practices (OSC). Distribution of the Handbook for Employers shall
be documented on any ESA-91 referral.
Investigators of ESA's Wage and Hour Division (WH) and Office of Federal
Contract Compliance Programs (OFCCP) shall conduct thorough inspections of
employers' compliance with their employment eligibility verification
obligations (Formsusually 1I-9) in conjunction with their ESA's labor
standards enforcement, except in any investigation based
on a complaint alleging labor standards violations. (Theis limitation to
conduct of conducting employment eligibility verification inspections only
in "directed" - i.e., non-complaint cases - is intended
and will be implemented so as to avoid discouraging complaints from
unauthorized workers who may be victims of labor standards violations by
their employer.) This employment eligibility verification compliance
inspection by ESA investigators shall not involve making any
inquiry regarding the immigration status of workers, nor shall the conduct
of an employment eligibility verification inspection be the basis for ESA
on-site investigation.
At the conclusion of the employment eligibility verification inspection
and generally before the completion of the investigation or review, ESA
investigators will advise employers of their findings regarding the
employment eligibility verification (I-9) inspection. In cases where it
appears that violations uncovered are serious - such as no I-9's or
refusal to provide I-9's, previous warning notice issued or an indication
of fraudulent documents - the ESA 1I-9 inspection (but not the labor
standards compliance investigation of which it is a part) shall be
terminated without close-out with the employer, INS contacted by telephone
and the ESA-91 referral form prepared and forwarded to INS as soon as
possible.
ESA investigators will not issue warning notices or Notices of Intent to
Fine to employers which are found to be violating their employment
eligibility verification obligations.
Referrals to INS
ESA will be responsible for the prompt referral to INS of all suspected
serious violations that are uncovered through its directed investigations.
"Serious" violations include:
- evidence of fraud, especially in instances where admissions rather
than allegations, are made that fraudulent
documents were used to obtain employment or where the employer knew
about or assisted in obtaining fraudulent documents;
- where 1I-9 forms are not regularly maintained by the employer;
- violations of the provisions against knowingly hiring or continuing
to employ unauthorized workers, though DOL investigators will make no
inquiry regarding workers' immigration status;
- violations of the prohibition against indemnity bonds;
- where the employer refuses to provide the necessary documents for
review, subject, as appropriate to the circumstances, to the existing
regulation's three-day notice provision; or,
- it is known that a warning notice or Notice of Intent to Fine has
previously been issued by INS.
ESA-91 referral forms will be furnished forwarded to INS field offices
by ESA for suspected serious violations as quickly as possible. These
ESA-91 forms shall specify the kinds of violations disclosed, identify a
point-of-contact at ESA, and include a brief but substantive narrative
containing any information and/or supporting documenta-tion which may be
available. ESA-91 forms for from inspections that reveal less serious
paperwork violations based on jointly established criteria will be
furnished on a timely basis. ESA-91 forms from inspections which indicate
employer compliance will be forwarded to INS only on request.
In order to promote more effective coordination, INS Headquarters will
provide a database preparequarterly reportsindicating the disposition of
INS employer sanctions cases, including (and indicating) those which were
based on all ESA-91 referrals, indicating the results of those cases and
noting any cases that have resulted in any significant enforcement action.
This report will be provided to ESA Headquarters.
The Immigration Officer's Field Manual for Employer Sanctions
will be modified to clearlyindicate that Form ESA-91's are a as a primary
source of credible information for predicating employer inspections and/or
investigations. INS field offices will utilize this source of lead
information effectively, as described above, and will provide feedback to
the point-of-contact through the database described in Section B Field
Procedures below.
Referrals to ESA
ESA District Directors and their INS counterparts will work together to
develop protocols (and training) for INS officers to make inquiries during
the course of their worksite enforcement activities that are intended to
elicit information which would indicate the occurrence of possible labor
standards violations at the workplace. When INS obtains or receives
information during the course of its worksite enforcement activities which
indicates a possible violation of statutes within the jurisdiction of DOL,
the INS shall expeditiously notify the District Director of the
appropriate ESA field office covering the area in which the suspected
violation occurred. Such notification may be in the form of telephone
communication or via timely transmission of copies of INS records prepared
in the course of its enforcement operations.
In order to promote more effective coordination, ESA Headquarters will
prepare quarterly reports (down to the District Office level) indicating
the disposition of labor standards enforcement activities initiated
pursuant to INS referrals which resulted in significant findings of
violations or monetary recovery for workers.
Removal
In certain situations, WH may ask INS to delay deportation of
undocumented workers who are cooperating in the development of a case or
are otherwise necessary for its prosecution. Criteria will be developed by
Headquarters of INS and ESA for WH to make such requests and for INS to
grant them as may be appropriate.
Employment Opportunities for Legal Workers
In addition to reducing the magnet of jobs for illegal migration, it is
desirable that employers be encouraged to identify and use opportunities
to maintain a legal work force. The agencies recognize this goal, and
accord it a high priority for both agencies.
In circumstances where INS removes unauthorized workers from the
workplace, reasonable efforts will be made to ensure that these workers
are not deprived of appropriate compensation for the work performed,
thereby affording an economic benefit to the employer from the employment
of unauthorized workers. This will be accomplished by INS notifying the
designated Wage and Hour point-of-contact of the circumstances of the
employment so that if the workers are not paid (or appear not to have been
properly paid) by the employer, appropriate enforcement and collection
activities by DOL can commence.
In addition, INS will make reasonable efforts to help assure that in
such circumstances, persons legally authorized to work have the
opportunity to gain employment. To do so, INS will refer employers which
have been found to employ unauthorized workers to a designated
point-of-contact in DOL which will coordinate with local sources of legal
workers. The DOL point-of-contact will ensure that the U.S. Employment
Service (USES) State Department of Labor job service agencies, which are
funded by DOL, various private organizations, and the local OFCCP
officeare informed of job opportunities for authorized workers. OFCCP will
contact the employer to facilitate the linkage to additional sources of
available legal workers. . ESA will work with the USES to develop an
appropriate reporting mechanism to track the number of authorized workers
referred and gaining employment pursuant to INS contact.
Referrals to OSC/Immigration-Related Discrimination
ESA and INS officers shall each be responsible for directly referring
indications or allegations of discrimination violations under Section 274B
of the INA Immigration and Nationality Act to the Office of Special
Counsel for Immigration-Related Unfair Employment Practices (OSC).
V. Agreement
The provisions of this Memorandum of Understanding cancel and supersede
all previous MOUs and become effective on the date of signature. The
provisions may be reviewed and jointly modified or eliminated, as
appropriate, if it is determined by either agency that such review and
modification or elimination is in the interest of effectively and
efficiently enforcing the laws under the agencies' respective
jurisdictions.
The preceding constitutes the full Memorandum of Understanding on this
subject between the Department of Justice, Immigration and Naturalization
Service, and the Department of Labor, Employment Standards Administration.
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Doris Meissner
Commissioner
Immigration and
Naturalization Service |
Bernard E. Anderson
Assistant Secretary
Employment Standards
Administration |
Date: 11/23/98 |
Date: 11/23/98 |
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