By Bruce E. Buchanan
In the past 6 months, owners of companies, who re-hired undocumented workers after an Immigration & Customs Enforcement (ICE) audit of its I-9 forms, have faced federal indictment or criminal forfeiture of assets for their unlawful actions. The common theme in these criminal actions is ICE conducts an audit of the company’s I-9 forms, ICE issues a Notice of Suspect Documents alleging employees did not provide valid work authorizations, the company tells ICE those employees have been discharged, and then the undocumented workers are re-hired under different circumstances.
KSO MetalFab Inc. Criminal Indictments
One case involves the owners of KSO MetalFab Inc., an Illinois sheet metal fabrication company. In this case, after an ICE audit of the I-9 forms of employees, ICE issued a Notice of Suspect Documents determining 36 of its 67 employees were suspected of using fraudulent documents to obtain their jobs. KSO MetalFab responded by attesting that it had terminated all 36 of the identified employees. However, after discharging the 36 employees, KSO MetalFab instructed the workers to go to a staffing agency, Metro Staff Inc., so that they could return to the company. Metro Staff hired 18 of the 36 undocumented workers and placed them back at their old jobs at KSO MetalFab.
Dora Kuzelka, Kari Kuzelka, and Keith Kuzelka, the owners of KSO MetalFab Inc., were arrested on charges they used an employment agency, Metro Staff, that “knowingly engaging in a pattern or practice of hiring and harboring” undocumented workers. The charge of knowingly harboring an illegal alien carries a maximum sentence of five years in prison while the charge of knowingly engaging in a pattern or practice of hiring illegal aliens is punishable by up to six months in prison.
TentLogix Criminal Indictments
In another similar case, TentLogix, a Fort Pierce, Florida based tent rental business, was audited by ICE in July 2016, when federal agents served a Notice of Inspection (NOI) for the company’s I-9 forms, resulting in a determination that the company employed 96 workers who were not authorized to work in the United States. Federal agents warned TentLogix “it could be subject to criminal charges if it continued to employ these aliens.” TentLogix, through its attorney, falsely stated to ICE that TentLogix had terminated the employees who were not authorized to work in the United States. However, this statement was false as those employees were still working at TentLogix although on the payroll of KH Services.
Three top officials with TentLogix, Gary Hendry, the CEO of TentLogix, its president Dennis Birdsall, and Kent Hughes were indicted by a federal grand jury for conspiring “to conceal or harbor aliens for the purpose of commercial advantage.” In the indictment, Hendry, Birdsall and Hughes are accused of creating KH Services, a limited liability company, in March 2017 “for the purpose of concealing, harboring and shielding aliens employed by TentLogix from detection by law enforcement.” According to the government, Hendry agreed to cover all the costs associated with KH Services and pay Hughes a fee for each undocumented worker who was transferred to TentLogix payroll to KH Services’ payroll.
Vilhauer Enterprises Criminal Forfeiture
In the third case, ICE has filed a criminal forfeiture lawsuit against Vilhauer Enterprises, a Plano, Texas excavation company, due to the company continuing to employ undocumented immigrants after previously being caught and fined for it. ICE seized $1.8 million from Vilhauer Enterprises’ bank accounts and asserts the money is proceeds from a crime: harboring undocumented workers.
The process started in 2015 when Vilhauer Enterprises was served a NOI. In that audit, ICE served the company with a Notice of Suspect Documents alleging 113 employees provided suspicious documentation to obtain employment. Vilhauer Enterprises stated it would terminate the undocumented employees and paid a $750 fine to settle the case.
In September 2018, ICE served Vilhauer Enterprises with another NOI. The company submitted a total of 475 forms. ICE discovered 71 employees, who had reportedly been “terminated”, continued employment but under different names. ICE alleges in the lawsuit that Vilhauer Enterprises has engaged in the practice of “pretending to terminate an illegal employee only for that employee to continue working under different identifying information.”
Conclusion
These three cases in 2019 are similar to earlier ICE actions against Asplundh Tree Experts and Waste Management, who paid penalties of $95 million and $5.5 million, respectively, for similar criminal offenses and managers engaged in the unlawful schemes were sent to prison.
If you fear you need assistance with your company’s I-9 compliance and related issues, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
Alternatively, feel free to contact me for representation in these matters.
