By Thomas J. Joy, Esq.
August 2008 Newsletter

What will your company do if:

• The government notifies your company that it is to produce all of its I-9 forms and related documents for audit?
  
• The government notifies your company that it is to produce all of its H-1B public access files and related documents for audit?
  
• Your company receives a Social Security No-Match Letter?
  
• Your company is merging with or acquiring another company?

There is no need for panic if you have consulted with experienced legal counsel which has resulted in a strategy for responding to these events. It is more important than ever to have such a strategy in place.

Increased government investigations and enforcement are driven by several factors. A poor economy resulting in layoffs in the labor market always produces increased investigations and enforcement to protect the American labor market from the adverse effects of foreign labor. Political pressure for more enforcement always increases in a poor economy. The resulting press leads to demands from the public for increased enforcement against illegal immigration. Finally, in an election year all politicians want to prove to the voters how tough they are on illegal immigration and protecting jobs for Americans.

I-9 Compliance: Since 1986 the law has required that all new employees must present documents that prove their identification and right to work in the United States, and the company and the employee must complete a Form I-9. Paperwork violations (mistakes or failure to complete the I-9) can very quickly escalate to fines of several thousands of dollars. The fines for knowingly hiring or continuing to employ unauthorized workers are more severe. Finally, a pattern or practice of knowingly hiring or continuing to employ unauthorized workers can lead to criminal charges. In attempting to comply with the I-9 laws, the employer must guard against violating the anti-discrimination laws which could result in fines and back-pay.

H-1B Compliance: Employers of H-1B professional workers are required to prepare and post an LCA (Labor Condition Application) regarding prevailing wages, etc. In addition, such employers are required to keep a public access file containing actual and prevailing wage information, etc. Failure to do so can result in civil monetary penalties, back wages and being prevented from using the H-1B program for at least 1 year.

Social Security No-Match Letters: A Social Security No-Match Letter is a notice that the records of the Social Security office do not match with the information being reported by the employer to Social Security. While the letter states that the letter, by itself, is not a basis for the employer to take any adverse action against the employee, the immigration enforcement authorities take the position that a failure to reasonably follow up could constitute constructive knowledge of an employee’s unauthorized status. Handling such letters can be a very delicate situation.

Mergers and Acquisition Compliance: Merger and acquisition transactions give rise to significant compliance issues for the acquiring or successor company. In addition, the immigration status of the acquired employees may be affected by the transaction.

E-Verify: E-Verify is an Internet-based system coordinated by the immigration and social security authorities which allows for electronic verification of the employment authorization of new employees. Subject to some exceptions, it is still voluntary. Federal contractors must use the system as must employers of certain F-1 students extending their optional practical training. In addition, a growing number of states are requiring E-Verify.

As one can see from the preceding material, employer compliance is becoming more complex and enforcement (investigations and audits) is increasing. In order to effectively deal with these issues and avoid the very severe consequences for noncompliance, employers must develop a strategy and be prepared. The most effective way to prepare is to develop a comprehensive compliance program customized to the employer’s specific needs.

Immigration Compliance Group provides telephonic and onsite I-9 training, consulting and document auditing, as well as employer compliance education and comprehensive program development. If you would like more information from us on this, please do not hesitate to contact us directly.

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And read one of our past articles on Employer Compliance