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Law and order
Immigration laws offer employers little wiggle room, so it’s crucial to validate hiring procedures and documentation.
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Federal agents recently carried out the largest raid on illegal workers in the nation’s history, arresting some 600 undocumented immigrants at a business in Laurel, Miss.
The incident was emblematic of the increasing pace of such enforcement actions around the country. Federal, state and even municipal governments are tightening up on immigration laws at a time when more employers are looking to fill their ranks with foreign nationals.
The penalties for employers can be severe.
“You can’t be fast and loose with immigration law,” says attorney Sara Goldsmith Schwartz, president of Andover, Mass.-based Schwartz Hannum, a law firm that represents business clients in employment-related litigation and compliance matters (www.shpclaw.com). “You risk costly fines and up to five years in jail for harboring illegal aliens.”
Verify worker identity
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).
To begin, each new employee must fill out an I-9 form, titled “Employment Eligibility Verification,” issued by the U.S. Citizen and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS).
“The law requires that the signatures and the information on the I-9 form be completed within three days of the employee’s hire date,” notes Tapia-Ruano. You can download I-9 forms online (see “Understanding I-9 forms” below.)
Employers commonly make errors processing these documents. “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,” Schwartz says.
Employers should make sure that everyone who helps employees fill out I-9s is trained to avoid errors. Penalties for errors can range from $1,000 to $10,000 per violation.
Even employers who make innocent mistakes can be fined, cautions Tapia-Ruano. “If a receptionist or whoever is assisting employees in completing the I-9 forms makes mistakes, then even if the workers are U.S.-born citizens, the employer is subject to fines.”
Avoid costly errors
While the I-9 form looks simple, attorneys caution employers from making these common errors:
Illegal bias. Avoid charges of discrimination by requiring every employee to fill out an I-9 form.
Entry errors. 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. “It is the employer’s duty to make sure the entries are accurate,” says Tapia-Ruano.
Failure to assess authenticity. The employer must not accept documents that a reasonable person would suspect were fraudulent either because they look doctored or look like duplicates.
Procrastination. Another mistake is to put off the task of examining the employee’s documents and getting the I-9 in order. “It’s not uncommon for employers to wait more than three days,” notes Tapia-Ruano. “Again, that can result in fines.”
Allowing expiration dates to slip by. Many employees have permission to work for only a limited period of time. “You need a system to continue to verify the employment status of an individual throughout the period of employment,” Tapia-Ruano says. Prior to the expiration date, ask the employee to present new verification documents.
It’s important to retain these I-9 forms in a safe place. “At any time, the Department of Homeland Security or the U.S. Department of Labor may come around and perform what they call an ‘employment audit’ of I-9s,” adds Tapia-Ruano.
“Be proactive and audit your I-9s to protect yourself,” suggests Schwartz. “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.”
Using E-Verify
Some employers are starting to use “E-Verify,” an online system intended to streamline the process of checking the work status of new hires by comparing information from an individual’s I-9 form against databases maintained by the Social Security Administration (SSA) and Department of Homeland Security. More than 69,000 employers are enrolled in this federal program (for information, see www.dhs.gov).
“The most obvious benefits of E-Verify rest in the central purpose of the program: to help companies avoid hiring employees without proper work authorization,” notes Batya Schwartz Ehrens, an immigration attorney in New York City. “The program allows employers to play a much more active role in the sleuth work of identifying unauthorized foreign workers and fraudulent documents. This can be beneficial in that it reduces an employer’s ability to knowingly hire, and knowingly exploit unauthorized workers.”
But there are problems with the program. “The possibilities of inaccuracies and errors may also delay hiring significantly,” Ehrens says. “When the employer runs a search on an individual, a resulting ‘no match’ may not accurately reflect the true status of the individual. 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 may arise from name changes after marriage and typographical errors. Many employers, says Ehrens, may decide they cannot afford to risk the collateral damage from the E-Verify system. “Most employers, large or small, are justifiably hesitant to be electronic guinea pigs for the program. Companies risk subjecting employees to the possibilities of delays, or risk the inability to employ workers due to processing errors or glitches in the system at its beginning stages.”
The law regarding E-Verify is in a state of flux, notes Schwartz. For regular updates on the current status of the law regarding the E-Verify system, visit the Web site of the law firm of Schwartz Hannum PC at www.shpclaw.com. Click on “News and Publications,” then on “Legal Updates and E-Alerts.”
Review documents
You must do more than process I-9 forms: You must also review the required identification and employment eligibility documents for each employee.
The I-9 form lists the documents that are acceptable. Avoid being more restrictive than what 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 as well as charges of discrimination.
Again, timing’s important. Like the I-9 forms, these identification documents should be gathered only after the hiring decision has been made — not during the employment interview. And you also need to examine the forms for authenticity. “There needs to be a good-faith basis to believe the documents are genuine,” Schwartz says.
Avoid unlawful discriminatory actions during the hiring process, adds Schwartz. If you want to photocopy the identification and work eligibility documents of your new hires, for example, do so for everyone. You cannot discriminate against any subgroups of people authorized to work in the U.S.
Many attorneys recommend that 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 do not match the SSA records. In the past, employers had never been sure what to do after receiving these letters. Should a worker who cannot reconcile the discrepancy be fired?
“In many cases, employers have kept the employees on board, fearing that a termination decision based on a no-match letter might lead to charges of discrimination,” notes Angelo A. Paparelli, managing partner of Paparelli & Partners, an immigration law firm. “There can be legitimate reasons why a no-match occurs. A female employee might have gotten married and changed her name to her husband’s without notifying the Social Security Administration. Or the Social Security Administration could have misspelled the name.”
Indeed, the Web site of the U.S. Immigration and Customs Enforcement division of the Department of Homeland Security states, “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 illegal immigrants, and there is 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 employment of undocumented workers. “The fear is that many people will be terminated based on foreign appearance and name,” Paparelli says.
As partial mitigation for this problem, the Department of Homeland Security has proposed new regulations intended to clarify matters while providing a “safe harbor” for employers who hire foreign nationals. The regulations define what steps employers must take within what time frames 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 and double-checking documents. And the safe harbor regulations will carry their own heightened risk of financial penalty.
“The procedures defined in the rules are not really voluntary,” Paparelli says. “The employer who fails to carry out the defined steps risks being charged with ‘constructive knowledge’ of the employment of workers who lack the right to work. This would put 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 that is currently being reviewed by the court.
Whether the regulations will go into effect is still an open question. What is certain is that the government will continue to pressure employers to assure the identity and eligibility of the workforce. The hiring of immigrants has long been a valued technique for getting the job done in America. Yet today’s employers need to tread more carefully over what has become a riskier legal terrain.
You must fill out an I-9 form for every newly hired employee. You can download copies of the form from www.uscis.gov. Click on “Immigration Forms” and then “Employment Eligibility Verification” or I-9, toward the bottom of the list.
On part 1 of the I-9 form, the employee enters basic information such as name, address, social security number and date of birth. Just as important is the section on the employment status of the individual. There are only three choices here. The individual is either: a U.S. citizen; a legal permanent resident; or an alien authorized to work until a given date. The employee must sign and date the form.
In part 2 of the form, you must certify that you have made sure the documents provided by the employee establish the individual’s identity and employment eligibility. What documents are acceptable? There is an extensive list on the back of the I-9 form. Any one document from a list of 10 are acceptable as proof of both identity and employment eligibility. (A passport and a permanent resident card are two examples.) Additionally, there are nearly two dozen additional documents that have been certified as proof of one of the two criteria.
Part 3 provides space for updating the form’s information after a worker’s previous work authorization has expired.