Employers in Forefront of Immigration Enforcement
By Timothy Gebhart
Increased enforcement of existing immigration laws was one theme of this summer’s debate over comprehensive immigration reform. What many employers – even those who never deal with immigration officials – may not realize is they are on the front lines of that enforcement effort. More importantly, the federal government is stepping up both worksite enforcement and criminal prosecutions of employers, something that will impact virtually every employer.
Any doubt of this was erased on Friday, August 10, 2007, when the Department of Homeland Security (“DHS”) announced the final version of regulations dealing with what is called the Social Security “no-match letter.” These are letters employers receive from the Social Security Administration indicating that the name and Social Security number submitted for an employee do not match the agency’s records.
The announcement also indicated the government’s growing focus on the I‑9 form employers must complete for every employee. DHS promised regulations reducing the types of documents employers can rely upon in the I-9 process. In addition, even though a December 2006 study indicated the database used by an electronic verification system was not sufficiently up to date to meet the mandates of federal law, DHS says it will push for increased use of the system. That includes adopting regulations requiring its use by all federal contractors and vendors, something that will directly impact more than 200,000 companies.
New Regulations Go Into Effect September 14
The no-match regulations were first proposed in June 2006 and will formally take effect September 14, 2007. The regulations deal with whether an employer has taken reasonable steps to address three situations: (1) an employee's request that the employer sponsor the employee for a labor certification or visa petition; (2) receipt of a no-match letter from Social Security; and (3) receipt of a notice from DHS (usually after an I‑9 audit) that the employment authorization documents presented the employer do not match DHS records.
The latter two areas are likely to impact almost every employer in the country. Up to four percent of the 250 million wage reports Social Security receives from employers each year result in so-called no matches. The regulations outline specific steps an employer must take within specified time periods to ensure DHS does not use a no-match letter as evidence the employer had constructive knowledge an employee was not authorized to work in the United States. At the same time, the regulation promises immunity from a constructive knowledge charge based on such notices if the employer follows the procedure outlined in the regulations exactly.
Any doubt of how serious DHS takes the rules is eliminated by its commentary to them. It said that if an employer does not resolve discrepancies within 93 days of receipt of a no-match letter, “the employer must choose between: (1) taking action to terminate the employee, or (2) facing the risk” DHS may find the employer had such knowledge and, by continuing to employ the employee, violated federal law. It is crucial to note, though, that an employer should not terminate an employee until the no-match process is completed, unless the employer obtains actual knowledge the employee is not eligible for employment in the U.S.
Some employers previously adopted written plans based on the proposed regulations. Others were holding off because they were waiting to see if the regulations became final or they were simply unaware of the proposal. DEH&S can provide detailed information on the new regulations, as well as help prepare written plans to comply with them.
The regulations are not the only effort to utilize no-match letters. Legislation in the current Congress would give employers three days after receipt of a no match letter to verify the employee’s work authorization and identity. It would also create a new verification system for no match letters and, once that system is in place, require employers to terminate an employee within 30 days of receiving a nonverification notice if the employee has not resolved any error in the notice within that time.
Focus on I-9 Process Increases
In addition, the I-9 process essentially makes every employer a deputy of U.S. Immigration and Customs Enforcement (“ICE”), requiring employers to verify the identity and employment eligibility of anyone they hire. The employer and employee must complete and the employer retain a one-page employment verification form, the I-9. The employer does not file the forms but must make them available for inspection upon request by ICE, the U.S. Department of Labor or the U.S. Attorney General. The law also forbids employment discrimination based on or involving the I-9, such as setting different verification standards for different groups of employees or relying on future expiration dates on required documents as a reason for not hiring or terminating someone.
The penalties for failure to comply with the law range from civil money penalties to criminal sanctions, depending on the nature and extent of the violation. In fact, simply failing to properly complete I-9 forms, retain them or make them available for inspection can result in civil penalties ranging from $110 to $1,100 per I-9 form in violation. Legislation introduced in Congress last month would increase those penalties to from $1,000 to $25,000.
Not only is ICE stepping up enforcement, it relies more frequently on criminal penalties. In 2002, INS (the predecessor to ICE) brought only 25 criminal prosecutions and arrested 485 illegal workers. In announcing new enforcement efforts last week, DHS Secretary Michael Chertoff noted that in fiscal 2006, which ends September 30, ICE has made more than 3,200 administrative arrests and 742 criminal arrests in worksite enforcement cases.
A variety of issues face employers in complying with I-9 requirements. Here are several basic guidelines:
- NEVER ask job applicants to provide documentation of their work eligibility and identity. The requirement applies only to persons “hired” by the employer.
- Employers are not required to retain copies of the supporting documents an employee provides. It may, however, be good practice to do so – but if an employer does retain copies, it must do so for all employees.
- NEVER ask for more or different documents than those listed on the back of the I-9 form.
- Develop a system to keep track of when I-9s can be destroyed (three years after the date of hire or one year after the termination of employment, whichever is later) and a system to track the expiration dates of work authorization documents.
- If you need to correct an I-9 form, the new information should be inserted on the original form, signed and dated as of the time it was added. NEVER fill out a new form and backdate it.
Those are just a few of the potential stumbling blocks for the unwary or unprepared. There are several methods to try to address such issues. One is to have a written policy in place detailing the I-9 process and record-keeping system. Another is to conduct a full scale audit or periodic snapshot audits of existing I-9 forms to assess your level of compliance. In conjunction with either or both of these approaches, consider training sessions for relevant personnel to address and minimize future issues.
As part of its continuing effort to be a full service law firm for the business community, DEH&S is available to assess, draft or review written I-9 policies, conduct full or partial audits, or provide on-site or off-site training for those in the organization responsible for I-9 forms.
Plainly, concerns about immigration will not disappear. In fact, we are already seeing that employers are frequently on the cusp of control and enforcement efforts. DEH&S is committed to being available to assist the business community with the challenges resulting from those efforts.