Following are the most frequent immigration-related concerns I hear expressed by employers. Some simple answers follow that I hope will be helpful to you.

Is my workforce legal?

You know if your workforce is legal if, within three days of their being hired, new employees are able to fully complete a Form I-9 and, in doing so, show both a valid proof of identity and employment authorization from the list of acceptable documents on the reverse side of the I-9.

Several other procedural issues surrounding completion of the Form I-9 should be mentioned in order to comply with relevant labor and employment law. First, you may not use the I-9 process to “screen” employees or as part of the hiring process. This is considered discriminatory and grounds for an applicant to file a complaint with the Department of Justice’s Office of Special Counsel for Immigration Related Unfair Employment Practices. Also, the I-9 should not be kept with an employee’s personnel files. In the event of an Immigration and Customs Enforcement (“ICE”) investigation – or worse, raid – it is best to have the I-9’s segregated within easy access and not to have other information available which is not relevant and may prove to be harmful. An example of harmful information would be I-9 attachments showing that different standards are used documentation required in verifying employment authorization, suggesting discrimination. Third, the I-9 must be kept for three years after the date of hire or for one year after employment is terminated whichever is longer.

Are there other steps I can take to be sure my workforce is legal?

The I-9 process is the easiest way to ensure that you have a legal workforce. However, further steps can be taken. The Department of Homeland Security (“DHS”) has partnered with the Social Security Administration (“SSA”) in implementing a free internet-based enrollment system called E-Verify. E-Verify electronically verifies employment eligibility of new hires. As of January, 2009, over 100,000 employers participate in E-Verify. In over 96% of all requests, the employee being verified comes back as employment-authorized.

The DHS recently has encouraged the use of E-Verify and further employer initiatives to obtain a higher comfort level for employers by certifying an employer as I E-Verified. The DHS will certify an employer who is I E-Verify compliant, has submitted to a voluntary audit by ICE, and is committed to follow ICE best practices. Best practices means the employer: 

• has entered into an agreement called IMAGE, the acronym for ICE Mutual Agreement between Government and Employers;
• has agreed to utilize E-Verify;
• has developed and implemented a internal training program for employees involved in the hiring process;
• requires secondary review of the completed I-9;
• has established an internal tip line;
• has a policy and procedure to report criminal violations to ICE or other law enforcement;
• uses a fair and consistent procedure to verify the names and Social Security numbers on Form W-2 match;
• conducts an annual audit by an external third party, such as an attorney or trained employee outside the hiring process, to review all Forms I-9;
• has established policies and procedures that prohibit discrimination;
• promotes the IMAGE partnership with other business partners; and
• submits an annual report to track results.

In return for an employer signing onto IMAGE, ICE will provide a minimum 2 year deferral of Form I-9 inspections.

It is worth noting here that E-Verify is now mandatory for federal contractors and subcontractors who have contracts in excess of $3,000. E-Verify has also become mandatory in certain states. An in-depth look at E-Verify will be forthcoming.

What are common mistakes in the Form I-9 that can create problems for me?

There are a number of common, but easily preventable, mistakes made by employers when processing the Form I-9. First, the employer frequently fails to notice that the employee may not have provided all information requested in Section 1. This requirement applies to all employees hired after November 6, 1986, even US citizens. Employers sometimes mistakenly assume that US citizens do not need to complete an I-9.

Failure of the employer to require the documentation necessary to prove an employee’s identity and employment authorization is another problem. Too frequently, employers make the mistake of requiring only a state-issued driver’s license as proof of an employee’s identity which obviously does not prove employment eligibility. An employer must also be conscious of the fact that a terminated employee may be unavailable to complete Section 1 so it is important to get the required information promptly upon hiring.

Inconsistent maintenance of the Form I-9 can also create problems. While an employer is not required to attach supporting documentation, if they do so for one employee, they must do so for all so as not to be considered discriminatory. During an inspection or raid, ICE agents may only inspect the Form I-9s. Supporting documentation attached to the I-9 can and will be reviewed by ICE: if that documentation looks fraudulent on its face, the employer can be imputed with constructive knowledge that the employee was not employment-authorized.

Neglect of Section 3 can be an issue. This section requires that an employer re-verify employment authorization if one of the documents provided by the employee expires. For this reason, an employer needs to keep a “tickler” system to ensure that expiring supporting documentation is renewed and Section 3 is completed. The employer should not request documentation different than that used to complete the Form I-9 originally as this can be considered discriminatory. These so-called paperwork violations carry fines ranging from $110 to $1100 per employee.

Can I be audited by or be the victim of an ICE raid?

Any employer can be audited or investigated by ICE. The DHS has recently issued a statement advising that it will focus on industries involving critical infrastructure, public safety or which are security-related. Recent ICE activity has included raids on employers with a large unskilled workforce, frequently in the agribusiness, food or hospitality industries

ICE may investigate an employer’s practices through a notice to inspect or make a raid, based upon background investigation and/or anonymous tips. ICE has been known to take years as it gathers evidence before initiating a raid against an employer whom it believes may be employing individuals who are not work authorized. Employers need to be aware that ICE can initiate action through the cooperation of an HR employee who agrees to becomes a confidential informant so as to avoid personal liability.

ICE has indicated it will increase pressure on employers through aggressive use of sanctions such as criminal penalties including fines, property forfeiture, and imprisonment, all as a means to discourage illegal job creation. The fines that can be imposed are harsh and can be levied against executives and managers individually, not just the company, depending upon the executive’s or manager’s knowledge of illegal hiring practices. Fines nationwide rose from $70,000 to over $30 million in four years. In fact, harboring illegal aliens -- which may include warning employees who are not work authorized of an impending ICE visit -- can result in employer sanctions of up to 10 years imprisonment per violation and the greater of $250,000 or two times financial gain per violation

What do I do if I receive a no-match letter?

An employer cannot do nothing if it receives a no-match letter from the SSA that an employee’s name and corresponding social security number fail to match SSA records. Receipt by an employer of such a letter, also known as EDCOR for “Educational Correspondence”, is considered to be constructive knowledge that an employee may not be employment authorized. By the same token, however, receipt of a no-match letter in and of itself does not indicate that the employee or employer has intentionally used an incorrect social security number. Unfortunately, the safe harbor provisions on how to proceed in the event of a no- match letter promulgated by the Department of Homeland Security promulgated in an effort to provide employer guidance have been found to be unconstitutional. This leaves the employer in a real dilemma. While an employer may be tempted to terminate the employee whose social security number is the subject of a no-match letter, this is illegal and could result in the employee suing or the Equal Employment Opportunity Commission investigating the employer. As a result, an employer must have in place clear, fair and consistent written policies on how it deals with no-match letters.

How can I avoid receiving a no-match letter?

Actually, the SSA has recently stopped sending no-match letters to employers as it is conducting a study to assess the accuracy of its Master Earning File. About 70 employers nationwide will be contacted to participate in a survey. The 70 employers selected are spread over the following regions: Boston, New York, Kansas City, Dallas, Denver and Seattle. The SSA has assured the public that any information being acquired is not to be used for data mining or communicated to ICE for enforcement. There is no indication when no-match letters will be sent again; however, employees may continue to receive the employee equivalent of a no-match letter called a DECOR letter (standing for “Decentralized Correspondence”).

Once the no-match letters commence being sent again to employers, one way to avoid the receipt of the same is for an employer to register online with the Social Security Number Verification System (“SSNVS”). While helpful in verifying an employee’s social security number, like E-Verify, the SSNVS may not be used as a precursor to hiring an employee nor for credit check and other reasons, including any punitive action against an employee whose social security number is the subject of a no-match letter.