Not long ago National Public Radio reported a story headlined "Border Fence Firm Snared for
Hiring Illegal Workers." It seems a fence-building company in Southern California had hired
illegal aliens to help build the fence the feds planned to use to keep illegal aliens out of the
country. The company was fined nearly $5 million and two of its executives were sent to jail.
This case epitomizes the current illegal aliens muddle in the United States. On the one hand,
there's a strong movement afoot to stop all illegal immigration. On the other hand, there's
no doubt that the U.S. economy badly needs the very immigrants it's trying to keep out - so
badly, apparently, we even need their help building the border fence! This is a knotty
problem, that, so far, the U.S. Congress has not been able or willing to unravel. And given
the failure of immigration reform in `07, nobody really expects a new reform bill until after
the '08 elections.
Meanwhile the U.S. Immigration and Customs Enforcement (ICE) is stepping up its enforcement
of the old, flawed 1986 Immigration and Reform Control Act, which basically puts the responsibility
on employers to police the border by refusing to hire illegal aliens. Until recently even ICE didn't
seem to take this too seriously, and in the unusual case where an employer was found guilty of
knowingly hiring illegals, a slap on the wrist was administered and the matter forgotten. That's
all changed under strident Department of Homeland Security director, Michael Chertoff. Some
apparently upstanding people are now paying hefty fines are even being sent to jail for hiring
illegal immigrants.
Take the case of Nagappan Mylappan Chettiar, a legal immigrant from India who arrived in
New York in 1986 in his 20's, virtually penniless. By his 40's he had several restaurants in Arizona
and was a millionaire. However Chettiar was recently convicted of knowingly employing illegal
Mexican workers. The judge admitted his accomplishments but fined him $250,000, sentenced him
to two years of supervised parole, and required him to give up his permanent residency in the U.S.
and return to India. Sound stiff? The U.S. Attorney's office appealed the sentencing, on the grounds
that it was too lenient, calling for a sentence of one year in prison. (The case is still under appeal).
This is just one of hundreds of such cases in recent months.
Thus the times have changed radically, and it is now very risky and unwise for any business, large
or small, to knowingly employ illegal aliens. In fact, in today's atmosphere, owners and executives
can find themselves in hot water even for unknowingly hiring illegals, that is, for failing to exercise
what the government considers reasonable diligence in screening out illegal aliens in the hiring
process. It gets worse. Your company can even find itself in legal jeopardy if you hire contractors
or temporary workers who are undocumented. You are prohibited from using employment
agencies or contractors that you know or "should know" employs illegal immigrants. The
"should know" is what the government refers to as "constructive knowledge."
Therefore, say lawyers, if your company utilizes employment agencies or contract employees, it's
important to have standards or policies in place which you let the contractors know they must
meet. And only contract with them if they do meet those standards.
You should also be aware that some states now have immigrant hiring laws of their own which are
even more stringent than federal law, especially Georgia, Colorado and Arizona. Your employment
lawyer is your best guide there.
HOW TO AVOID HIRING UNAUTHORIZED IMMIGRANT WORKERS
Every new employee has to complete an I-9 Form documenting his/her authorization to work in
the U.S., even if the employee was born here and is a U.S. citizen. Companies face fines up to $1,100
per form for violations, plus possible civil and criminal penalties. As is well-known, the Department
of Homeland Security has greatly increased its work site auditing in recent months. These audits
typically begin with an inspection of an employer's I-9 Forms.
The I-9 process should start the day an employee begins work. The employee completes the first
section of the I-9 and provides supporting documents (e.g., passport, permanent residency card,
driver's license + social security card, etc.) on the day of hire. The documents must "appear
reasonably genuine." If the required documents are not presented, the employee must be
suspended and removed from the payroll (though not necessarily terminated) until correct
documentation is provided. Employment lawyers caution, however, that employers shouldn't
normally request documentation before making an offer of employment. Reason -- possible
discrimination claims.
Employers should keep I-9 Forms for all current employees, and for at least one year after
termination for terminated employees. It is not necessary to retain copies of supporting
identity documents and in fact some lawyers recommend against doing so.
You should also be aware of "re-verification requirements." If an employee is not a U.S. citizen or
lawful permanent resident, they are probably working based on a status with a defined end date,
in which case the employer must note the expiration of their documents on the I-9 and then must
pull their I-9 Form before the expiration date and re-verify that the worker's status has been
extended.
Avoiding I-9 violations is extremely important these days, given the severe penalties being
imposed. According to many employment lawyers, one of the best preventive measures is to
conduct an internal audit of your company's I-9 files to see if there are violations. In addition,
you should set up a re-verification tickler system to ensure I-9s are checked in a timely manner.
"NO MATCH LETTERS" AND SAFE HARBOR PROCEDURES
The death of comprehensive immigration reform spurred the Department of Homeland Security
and the SSA to instigate a new enforcement strategy - sending out controversial "no match"
letters to employers, notifying them that certain of their workers have Social Security numbers
that do not match the appropriate names. SSA is said to be planning to send out almost 150,000
of these letters. Employers who receive no-match letters may understandably feel they are
suspected of having intentionally hired illegal aliens. But they can avoid any presumption of
guilt by following what U.S. Immigration and Customs Enforcement (ICE) terms as "safe-harbor"
procedures. The safe harbor procedures, in a nutshell, are these:
- Within 14 days after receiving the no-match letter, check company records to determine whether
there's been a typographical or clerical error in submitting the employee's name and SSN to the
Social Security Administration and inform SSA if such an error is found.
- If step 1 did not resolve the discrepancy request that the employee review his social security card
and confirm that he/she provided the correct name and number. If the correct name/number was
provided, advise the employee to contact SSA to resolve the discrepancy. If SSA finds an error that
can be corrected, the employee should obtain confirmation of this from the SSA, and then the
employer should verify with SSA that the correction has been made.
- If the discrepancy is not resolved within 60 days of receipt of the no-match letter, the employer
is required to repeat the I-9 verification process but this time the employee can not use any
documents that were the subject of the no-match letter. In addition, any document used to
establish identity at this point must contain a photo of the employee. If employment authorization
cannot be verified, the employer must terminate the employee.
PROBLEMS WITH THE SYSTEM
There are a lot of problems with the system described above. ICE plans to hold employers
responsible if they accept fake identity documents unless such documents "appear
reasonably genuine." But drivers licenses and SSN cards are ridiculously easy to fake and
forgeries can be obtained cheaply over the Internet and elsewhere. What's more, the law
prohibits an employer from refusing a document that "appears" genuine on its face.
Employers can call the SSN (1-800-772-6270) or use an Internet site (ssa.gov) to verify that
the SSN card submitted by the prospective worker belongs to the person whose name is
on it - however that doesn't mean that that SSN card belongs to the worker who is
presenting it. It just means that it belongs to that name. And verifying a drivers license
can be just as difficult since many states won't divulge personal information for fear of
violating privacy laws.
In an effort to comply with the law many employers have signed up for USCIC's Basic Pilot
Program. This voluntary program was designed to test ways for employers to verify that
employees hire workers authorized to work in the U.S. However, some experts complain
that USCIC now routinely conducts audits of employers who have enrolled - so if you enroll,
you're likely to be audited for I-9 compliance, and if mistakes are found, you'll be fined or
even criminally-charged. So why, they ask, would you sign up for such a program?
Given the ambiguous and risky situation employers face, what should be done? According
to Charles Kuck, national vice president of the American Immigration Lawyers Association,
all employers who hire immigrant workers should conduct their own internal I-9 audit. "Go
through every I-9 you have for your company and make sure you filled it out correctly," says
Kuck. "You have a right under the statute to go back and correct erroneously completed I-9s
at a later date, as long as you initial and date and corrections you made. We recommend you
do those corrections in a different color pen." He adds, "This self-audit goes a long way toward
eliminating any fines or legal action against the employer."
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