NOTE: This article is an introduction to what will be a new area of our website and a new consulting service that Immigration Compliance Group will be offering to its USA-based corporate clients. More will come on this topic in the future months...

While Congress has been working to reform our nation's immigration laws, the Department of Homeland Security ("DHS"), through its Immigration and Customs Enforcement Bureau ("ICE"), has been more aggressively auditing companies to investigate their compliance with the Immigration Reform and Control Act of 1986 ("IRCA"). In response to 9/11, the government has increased its security measures and electronic initiatives to address national security concerns. As a result, we have seen increased audits and criminal investigations of U.S. employers. Search warrants, worksite raids and audits have become standard investigative tools to aid the Government in enforcing immigration laws.

While immigration can be a divisive issue today, employers must remain focused on complying with the law. Under IRCA, all employers must verify that every person hired after November 6, 1986, is either a U.S. citizen, permanent resident, or a foreign national authorized to work in the United States. Employers should reacquaint themselves with their duty to verify employees' eligibility to work in the United States and take steps to review and, if necessary, strengthen their compliance programs.

In February 2008, ICE issued a Workforce Enforcement Advisory to familiarize employers with common fraud schemes relating to an employee's eligibility to work.

Employment Verification Procedures

The mechanism for employment verification compliance is the I-9 Employment Verification Form which every worker must complete on the day of hire or earlier. The employee must complete the first section of the I-9 form and must provide the required supporting documents within three days of the date of hire. If the documents are not presented by that point, the employee must be removed from the payroll (though it is permissible to suspend the worker rather than terminating the worker all together).

USCIS recently released a new edition of Form I-9, Employment Eligibility Verification, dated 6/16/08 and have revised the Form I-9 page on its website to indicate that it is accepting the "Rev. 6/5/07" edition of the form.

For a copy of Form I-9, Employment Eligibility Verification with detailed Instructions, visit the USCIS website.

I-9 Record Keeping Requirements : Form I-9 is not submitted to the government. Instead, employers must retain completed I-9 forms for three years after the employee's date of hire or one year after the date that employment is terminated, whichever is later. Form I-9 may be completed and stored in hard copy or electronically.

IRCA Anti-Discrimination Rules : While all employers should be diligent about complying with IRCA's employment verification rules, they should also be cautious not to overstep boundaries such that qualified prospective employees are penalized. IRCA requires employers to refrain from unfair immigration-related employment practices ("UIREP"). The Act prohibits employers from committing employment discrimination against a worker because of his or her citizenship status or national origin. Employers are also prohibited from committing "document abuse" in the employment verification process. Document abuse occurs when an employer requests more or different documentation of a worker's identity or employment authorization, or refuses to accept proper documents. IRCA's antidiscrimination rules are very clear and its sanctions could be very severe. Under IRCA, employers cannot refuse to employ or terminate the employment of individuals based on their national origin or citizenship status. UIREP violations are investigated and litigated by the Office of Special Counsel, a Civil Rights Division of the Department of Justice. The Office of Special Counsel has caused employers to pay over $1 million in back-pay to workers, has required employers to rehire workers, and has levied fines totaling hundreds of thousands of dollars.

Mergers & Acquisitions : While a closing may be a cause for celebration at a company, it can also be the cause of a nightmare for a company since it can instantly render all completed I-9s for an acquired company invalid. If the acquiring company does not assume all the assets and liabilities, then the I-9s will likely not transfer. In a merger case where the acquiring entity is a successor-in-interest, new I-9s will not be needed. However, I-9s should be checked in the due diligence process to ensure the acquired I-9s are in good shape. Employers should consider adding I-9s to a merger checklist and have all employees of the combined company complete I-9 forms on the day of closing or beforehand.

Penalties : IRCA provides an array of penalties for employment violations. An employer who has committed "paperwork violations" for mistakes in completing I-9 forms or failure to maintain I-9 records is subject to penalties of $110 to $1,100 for each violation. An employer who knowingly hires or continues to employ foreign nationals not authorized to work in the United States is subject to first offense civil fines of $250 to $2,200 for each unauthorized worker, and fines of up to $11,000 for subsequent offenses. In addition, if it is established that the employer had a "pattern or practice" of knowingly hiring or continuing to employ unauthorized workers, criminal penalties, including fines and prison terms, are possible. Employers who commit document fraud - e.g., fraudulently completing an I-9 form or knowingly accepting a forged or counterfeit document for verification purposes - are subject to first offense fines of up to $2,200 for each occurrence and up to $5,500 for subsequent offenses. In addition, employers who knowingly hire or continue to employ unauthorized workers may be barred from participating in contracting relationships with the federal government. Note that IRCA penalties may also be assessed against an employer who used unauthorized workers through a relationship with an independent contractor and who knew or had reason to know that the workers were ineligible for employment in the United States.

Social Security No-Match Issues

A Social Security "no-match letter" is a notice sent by the Social Security Administration ("SSA") to employers and employees to inform them that the employee name or Social Security number listed on an employee's W-2 does not match the SSA records. The no-match letter is not a notice that the employer or employee has done anything wrong. SSA mismatches may have many root causes, including failure to inform the SSA that a name change has occurred, typographical errors, an error within the SSA database, and individuals who present false social security numbers or use another person's social security number when completing hiring paperwork.

How This Affects You : Under the new regulations, employers may be held liable for criminal and civil penalties if they ignore "no-match" problems by failing to take the specified steps outlined in the letter. Employers who fail to comply with the new rule could be deemed as knowingly hiring an illegal worker and could face fines of up to $10,000 per worker and incident. It is important to note that SSA no-match letters have nothing to do with ICE or any other immigration enforcement agency. The SSA has clearly stated that a no-match letter "is not a basis, in itself, for [employers] to take any adverse action against the employee, such as laying off, suspending, firing, or discriminating against the individual...and makes no statement about the employee's immigration status." Still the letters have often been misinterpreted by employers who mistakenly think that the no-match letter is a notice that employees listed in the letters are non-citizens who are not authorized to work. I-9 reverification or termination based solely on a no-match letter could violate anti-discrimination law. At the same time the ICE have stated that an employer's failure to adequately follow-up on no-match letters could constitute evidence of or contribute to an employer's constructive knowledge of an employee's unauthorized status. There are some simple steps employers can take when they receives a no-match letter that will fulfill their obligations under the law, allow them to retain their employees, avoid any potential discrimination, and avoid trouble from the SSA, IRS, or immigration authorities. The employer must take the certain steps under the "safe-harbor" procedures of the new regulations.  

Visit the "safe-harbor" program today.

E-Verify

E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program) is an Internet based system operated by the DHS in partnership with the SSA that allows participating employers to electronically verify the employment eligibility of their newly hired employees. E-Verify was first developed in 1997 in the wake of a 1996 immigration reform law and was set up as a voluntary aid for employers to electronically verify the employment eligibility of their newly hired employees. E-Verify virtually eliminates SSA mismatch letters, improves the accuracy of wage and tax reporting, protects jobs for authorized U.S. workers, and helps U.S. employers maintain a legal workforce. E-Verify is free and voluntary and is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers.

Recently, U.S. Citizenship and Immigration Services (USCIS) announced that F-1 students who are applying for a 17-month extension of optional practical training (OPT) on the basis of a degree in a science, technology, engineering or mathematics ( STEM) field must have a job or job offer from an employer that is enrolled and in good standing in the E-Verify employment eligibility verification program at the site where the student will be employed. If the STEM graduate is employed by more than one employer, all of the graduate's employers must comply with the E-Verify requirement.

As published, the regulation does not specify the extent to which an employer must use E-Verify in order to employ a STEM graduate on extended OPT. For example, many employers use E-Verify at specific locations only, rather than company-wide. However, USCIS has now clarified that it is not enough for the employer to merely be registered in E-Verify at any location; it must be enrolled in and properly using E-Verify at the site where the STEM graduate will be employed. The employer must provide its E-Verify identification number for inclusion on the STEM graduate's Form I-765 application for employment authorization.

Note that the employer should use the E-Verify system to confirm the STEM graduate's employment eligibility only if the graduate is a new hire. E-Verify cannot be used to verify the employment eligibility of existing employees.

Federal Contractors Must E-Verify : On June 9, 2008, President Bush issued an executive order prohibiting federal contracting agencies from contracting with any companies who do not use an electronic employment eligibility verification system designated by the Secretary of Homeland Security. While the Executive Order does not specify when contractors must comply nor does it designate the specific electronic verification system contractors must use, Secretary Michael Chertoff of the DHS responded to the Executive Order by designating E-Verify as the system of choice “to ensure that the federal government only does business with companies that agree to verify the legality of their new hires and further, that the specific employees tapped to perform contract services in the United States for the federal government are authorized to work in this country.” Companies with federal contracts and others should carefully plan to implement E-Verify immediately. For more information on the E-Verify system, visit:

• USCIS
• DHS
  

IMAGE

The ICE Mutual Agreement between Government and Employers Program ("IMAGE") was initiated in 2007 to help employers "self-police" with respect to complying with the federal immigration law's prohibition against hiring workers who are ineligible to be employed in the United States. IMAGE is voluntary for employers. According to ICE, employers who participate in IMAGE can reduce unauthorized employment and the use by workers of fraudulent identity documents by implementing IMAGE's "best hiring practices." As part of IMAGE, ICE and the United States Citizenship and Immigration Services ("USCIS") provide employers with education and training in proper hiring practices, fraudulent document detection, use of Basic Pilot employment eligibility program and anti-discrimination procedures.

For more information on the IMAGE program:
Visit ICE.gov

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Disclaimer: This news article is provided for informational purposes only is and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.

NOTE: This article is an introduction to what will be a new area of our website and a new consulting service that Immigration Compliance Group will be offering to its USA-based corporate clients. More will come on this topic in the future months...