Federal agents recently conducted the largest raid on illegal workers in national history, arresting 600 undocumented immigrants at a Laurel, MS, business. It was emblematic of government at all levels tightening up on immigration laws.
The penalties for employers can be severe — costly fines and up to five years in jail for harboring illegal aliens, says attorney Sara Goldsmith Schwartz. She's president of Andover, MA-based Schwartz Hannum, a law firm specializing in employment-related litigation and compliance matters (www.shpclaw.com).
But with the right policies and procedures, you can stay out of trouble. Immigration-law attorneys advise taking a fresh look at your hiring procedures and documentation.
“Every individual, once hired, must be asked for documents that prove their identity and their work authorization,” says Carlina Tapia-Ruano, partner at Chicago-based Tapia-Ruano & Gunn, an immigration law firm (www.trgpc.com).
First off, each new employee must fill out an I-9 form, titled “Employment Eligibility Verification,” issued by the U.S. Citizen and Immigration Services (CIS), a division of the Department of Homeland Security (DHS). “The law requires that signatures and the information on the I-9 form be completed within three days of the employee's hire date,” notes Tapia-Ruano.
Employers commonly make errors processing these documents, Schwartz says. “For example, employers sometimes ask the applicants to complete the I-9 forms during employment interviews. Instead, individuals should complete the forms only after being hired, to avoid the reality or appearance of discrimination.
“Other employers sometimes miss mandated deadlines for completing the forms and instead resort to illegal backdating. Still others fail to retain the forms for the required length of time,” she says.
It's important that employers ensure everyone who helps employees fill out I-9s is trained to avoid errors. Failure to do so can be costly — $1,000 to $10,000/violation — even for innocent mistakes, Tapia-Ruano cautions.
Some employers use “E-Verify,” an online system aimed at streamlining the process of checking new hires' work status by comparing information from an individual's I-9 form against databases maintained by the Social Security Administration (SSA) and DHS. More than 69,000 employers are enrolled in this federal program (www.dhs.gov).
“E-Verify's most obvious benefit is helping companies avoid hiring employees without proper work authorization,” notes Batya Schwartz Ehrens, a New York City immigration attorney. E-Verify allows employers to play a much more active role in the sleuth work of identifying unauthorized foreign workers and fraudulent documents, which reduces an employer's ability to knowingly hire and exploit unauthorized workers.
But there are problems with the program. “The possibilities of inaccuracies and errors may also significantly delay hiring,” Ehrens says. “When the employer runs a search on an individual, a resulting ‘no match’ may not accurately reflect the individual's true status. As a result of the erroneous mismatch, the employer may experience significant hiring delays and the employee may encounter discrimination before the situation is remedied.”
Inaccuracies also may arise from typos or name changes after marriage. Many employers, Ehrens says, may decide they can't afford to risk the collateral damage from the E-Verify system.
“Most employers are justifiably hesitant to be electronic guinea pigs for the program. Companies risk subjecting employees to delays, or the inability to employ workers due to processing errors or glitches in the system at its beginning stages,” Ehrens says.
The law regarding E-Verify is in a state of flux, Schwartz notes. “By fall 2008, the system was required to be used by all federal contractors, and a growing number of states were also requiring its use by employers. However, there's no guarantee funding will continue at the level required to maintain the system as it's accessed by so many new employers.”
E-Verify was scheduled to expire this March. It's not known yet if it will be renewed. For regular updates on the current status of the law regarding E-Verify, visit the Schwartz Hannum PC website at www.shpclaw.com. Click on “News and Publications,” then on “Legal Updates and E-Alerts.”
Employers must do more than process I-9 forms; they must also review the required ID and employment eligibility documents for each employee.
The I-9 form lists the acceptable documents (examples include a passport and resident card). Avoid being more restrictive than the law mandates. You might be tempted to reduce the number of acceptable documents to simplify record keeping, but that's illegal and can lead to fines and discrimination charges, Tapia-Ruano notes. “You must accept the employee's decision as to which of the listed documents to provide.”
Again, timing's important. Like the I-9 forms, these ID documents should be gathered only after the hiring decision has been made — not during employment interviews. You also must examine the forms for authenticity, Schwartz says. “No one expects you to warrant the validity of the forms but there needs to be a good-faith basis to believe the documents are genuine.”
Avoid unlawful discriminatory actions during the hiring process, Schwartz adds. If you want to photocopy new hires' ID and work-eligibility documents, for example, do so for everyone.
Many attorneys suggest employers attach photocopies of the reviewed documents to each I-9, to help protect the business in the event of an audit.
Safe harbor rules
The U.S. Social Security Administration (SSA) has long been in the practice of sending “no-match” letters to employers when workers' names and Social Security numbers on W-2 Forms don't match SSA records. In the past, employers were unsure of what to do after receiving these letters. Should a worker who can't reconcile the discrepancy be fired?
“In many cases, employers kept the employees on board, fearing termination based on a no-match letter might lead to discrimination charges,” notes Angelo Paparelli of Paparelli & Partners, an immigration law firm in New York City and Irvine, CA (www.entertheusa.com). “After all, there can be legitimate reasons why a no-match occurs. A female employee may have married, for example, and changed her name to her husband's without notifying SSA. Or SSA may have misspelled the name.”
Indeed, the website of the U.S. Immigration and Customs Enforcement division of DHS states that “an employer who takes action against an employee based on nothing more substantial than a mismatch letter may, in fact, violate the law.”
Times, though, are changing. Today's employers face more severe fines for hiring illegals, and there's a general national mood shift against undocumented foreign nationals. Many observers, therefore, are concerned that employers will opt to risk discrimination lawsuits over the federal government's civil and criminal penalties for employing undocumented workers. “The fear is many people will be terminated based on foreign appearance and name,” Paparelli cautions.
As partial mitigation for this problem, DHS has proposed new regulations to clarify matters while providing a “safe harbor” for employers who hire foreign nationals. The regulations define the steps employers must take within what timeframes to avoid legal liability for hiring undocumented workers.
While the safe-harbor regulations are intended to reduce ambiguity, employers will still face the costly task of checking documents. And the safe-harbor regulations will carry their own heightened risk of financial penalty.
“The procedures defined in the rules aren't really voluntary,” Paparelli cautions. “Employers who fail to carry out the defined steps risk being charged with ‘constructive knowledge’ of the employment of workers who lack the right to work. This puts the employer in violation of immigration laws.”
An injunction by a federal court in late 2007 delayed implementation of the new regulations. However, the government recently proposed a revision currently under review by the court.
Whether the regulations will go into effect is still an open question. What's certain is the government will continue to pressure employers to assure the identity and eligibility of the workforce.
Phillip M. Perry is a New York-based writer specializing in management and legal issues.
For more on I-9 forms and employment visas, see this article at beefmagazine.com.
Avoid costly errors
Attorneys caution employers against these common I-9 errors:
Avoid charges of discrimination by requiring every employee to fill out an I-9.
“Any mistake can result in fines,” cautions lawyer Carlina Tapia-Ruano. One of the more common errors is incorrect indication of the employee's immigration status. An employee with a work visa, for example, may have erroneously filled in “permanent resident.” Such a mistake is significant even if done innocently. Accuracy is the employer's duty.
Failure to assess authenticity
The employer must not accept documents a reasonable person would suspect were fraudulent.
Don't put off examining the employee's documents and getting the I-9 in order. “It's not uncommon for employers to wait more than three days,” Tapia-Ruano notes. “That can result in fines.”
Don't let expiration dates slip by
Many employees have permission to work for only a limited period of time. “You need a system to continue to verify an individual's employment status throughout the period of employment,” Tapia-Ruano cautions. Prior to the expiration date, ask the employee to present new verification documents.
Retain I-9 forms in a safe place
“At any time, DHS or the U.S. Department of Labor may perform what they call an ‘employment audit’ of I-9s,” Tapia-Ruano says.
“Be proactive and audit your I-9s to protect yourself,” Schwartz adds. “We just completed an audit for an employer with locations in 20 states. Of the 5,000 I-9 forms in the files, 4,100 had issues. I've never seen an employer with 100% compliance. Part of the problem is that staff often aren't adequately trained on how to properly complete the I-9 forms.”
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