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 eligibility documents must be completed within three
business days from the hire date. With the change in late 2007,
employers are required to use the new form for all new hires and to
re-verify expiring work authorization documents. Failure to use the new
I-9 forms exposes the company to fines and penalties. The new forms are
not required, however, for existing employees, except for
re-verification.
In
completing the I-9, employers must be careful to act in accordance with
the law. They may not ask for specific documents to support or complete
the form. Doing so lays the groundwork for a discrimination claim. At
the time of hire, employee-chosen eligibility documents from the I-9
document list must be produced within three days or a receipt provided
proving a replacement document has been requested, which must be
received within 90 days. If documents are not produced and verified in
this timeline, employers cannot continue to employ the employee.
A
consistent records management program is essential. Not only must
employers retain I-9s for terminated employees for a specific period of
time, they must consistently maintain I-9 support documentation in I-9
employee files. If an employer retains copies of identity and eligibility
documents for one employee, they should retain them for all. Set a
policy for retention of certain documents in a file, apply that policy
uniformly across the workforce, and keep back ups.
Harkey
advises that "In the event of an ICE audit, employers should have
a separately maintained I-9 file
system for easy production. For large companies and for small companies
protecting themselves against loss of these important documents due to
severe unforeseen events such as hurricanes and fires, employee I-9s
should be maintained electronically both at the company's central
office and at a backup location."
Many
employers are concerned about evaluating the validity of the produced
work authorization documents, but the current legal standard stated by
immigration law is broad. Employers are not required to be experts in
document verification -- they must determine that the produced
documents are "valid on their face." However, if
authorization documentation is presented that has an expiration date, such
as a work visa, employers must re-verify the employee's work
authorization in the appropriate I-9 section.
Employers
are not wise to knowingly hire subcontractors who employ unauthorized
workers. Employers who knowingly hire subs who are unauthorized or one
who hires unauthorized workers can be held in violation of federal
immigration law. To protect themselves, employers are advised to
include indemnity provisions in all contracts with subs and other third
parties for any potential breaches of immigration law by the sub and
their employees.
Escalating Impacts of ICE
Infractions
Despite
good intentions, proper documentation and judicious document review,
the risk of ICE enforcement remains potent. In 2006, ICE unveiled its
comprehensive enforcement program, stating that "employers that
knowingly and recklessly employ illegal aliens must be punished."
The
most significant change to the new ICE policy is a shift from solely
administrative fines and sanctions to penalties that include both
administrative fines and criminal charges. ICE's new policy makes the
hiring of illegal workers with the requisite knowledge a potential
crime for employers, and the agency can now seize illegally-derived
corporate assets from employers who break the law.
Not
only has the threat of criminal prosecution increased employer risk,
but the financial damages have also escalated. Under the new penalty
structure, employers who knowingly hire or continue to employ
unauthorized workers are subject to fines ranging from $275 to $2200
for each worker (based on documentation) on the first offense to $3300
to $11,000 per worker for each offense after the second violation
notice. And a pattern of practice in hiring illegal workers can bring
up to six months in prison for employers.
If
ICE suspects a company of violation, they first issue a Notice of
Intent to Fine. From there, employers have 10 days to cure paperwork
violations. Companies with a history of infractions are denied the 10
day cure and subject to fines immediately.
The
best defense in an ICE audit is proper documentation and a
comprehensive immigration compliance plan. Now more than ever,
employers must thoroughly and accurately process I-9 forms. Employers
that fail to comply run the risk of getting slapped with recently
escalated penalties.
Immigration
compliance plans (ICPs) can help a company sidestep ICE audits and
defend themselves in the event of an audit. Plans should make clear
that the employer enforces federal immigration law on all its worksites
and work areas at all times and requires compliance from all employees.
The
language of the ICP must make clear that I-9s are required for all
employees and are to be fully completed by all. Effective ICPs call for
immigration and I-9 completion training for all key personnel,
including HR, and to avoid additional risk, ICPs should require
adherence to federal immigration law by all subcontractors, as well as
including an indemnity provision.
The ICE Audit
– Preparing and Surviving
 Despite taking precautions
and engaging in a systematic and strategic immigration compliance
program, some employers will find themselves in ICE's crosshairs.
"Many
ICE investigations are due to confidential reports — a company's
competitor may file a report or a disgruntled employee who is aware of
unauthorized company workers or a substandard I-9 system,"
explains Harkey.
The
first stage of the ICE audit is the notification period. ICE provides
employers with three (3) days' notice of its intent to inspect. An
employer can and should choose the inspection location.
Upon
receipt of the notice, employers may correct "technical I-9
errors," which will help mitigate any subsequent fines. In making
I-9 corrections, employers should be careful to retain both the
original and the revised forms and avoid backdating any documents.
ICE
requires that all I-9 documents be produced in full at the time of the
audit. Companies can ease this burden by maintaining these records
separate from standard personnel files.
Documents
can be furnished electronically or in hard copy format.
As
in many situations, communication and access are critical to
streamlining the ICE audit process. Prudent employers will assign
a company representative or legal counsel to serve as the ICE liaison
throughout the process. It is imperative that the liaison be
well-versed in immigration law and compliance, I-9 documentation and
record retention, and have strong knowledge of the company's immigration
compliance plan and protocol.
"My
clients who have been most successful in immigration audits have had
not only the involvement of counsel but that of a well-trained HR
representative in immigration law and regulations," says Harkey.
More Changes
Ahead
Members
of the media and citizen activist groups have kept the heat on
lawmakers to expand and increase the
scope of laws governing illegal immigration. The Comprehensive
Immigration Reform acts in the U.S. Congress and U.S. Senate remain in
committee. Lesser known but certainly critical is the SAVE Act,
currently before Congress. SAVE is the "Secure America through
Verification and Enforcement" Act of 2007 (HR 4088 and S 2368).
SAVE
has three primary components including international border enforcement,
interior enforcement and putting an end to unlawful employment. It is
the Ending Unlawful Employment provision that has the greatest impact
on employers. With an employment verification pilot program currently
in place, the goal of the Act is to make the pilot program permanent.
Central to the pilot program is the use of E-Verify, the U.S.
employment status authorization verification program. As of February of
this year, 52,000 employers had voluntarily signed on to E-Verify.
E-Verify
is an internet-based system operated by DHS in partnership with the
Social Security Administration. It provides access to SSA and DHS
databases to verify the validity of social security numbers and
employment eligibility of new hires. It also taps into the USCIS database
to verify eligibility. To date, 93 percent of employers' queries
regarding eligibility have been instantly verified as work authorized.
Using
E-Verify provides some additional protection to employers. Any employer
who uses EVerify is not liable for hiring an authorized alien if an
error in eligibility is found in the E-Verify system. It also provides
protection in the event of an ICE audit, providing a defense to the
employer from penalties.
"E-verify
eases the HR department's burden to verify work authorization documents
during the I-9 process. It helps to remove the risk that they are
unknowingly employing workers without proper documentation and
subjecting themselves to governmental penalties," notes Harkey.
"E-verify is not a good fit for all companies at this time,
however, and companies should research the details of the program and
seek counsel regarding same before entering in Memorandums of
Understanding with the government, an E-verify requirement."
Tufly
agrees and indicates E-verify makes it easier on employers subscribing
to the service by streamlining the I-9 process.
Navigating
immigration and hiring requirements for employers is predicted to grow
more complex in the coming years. In addition to the new bills on the
agenda in the House and Senate, many states are evaluating and
implementing their own programs for immigration violation enforcement.
Navigating the territory will require employers to have sufficient
records management and plans in place and a firm grasp of both state
and federal employment eligibility requirements.
"Foresight
and preparation are key to avoiding immigration compliance problems and
penalties. Most companies can avoid these difficulties through careful
review of their hiring and I-9 processing systems. Of course, an annual
internal I-9 audit will reveal most problem areas that can be
corrected," advises Harkey.
Outsourcing,
September 11th, rising corporate layoffs, and increased media scrutiny
have created a perfect storm for employers on the immigration issue. In
a brave new world, the best defense remains proper documentation,
thorough training for all key supervisors and supervisory departments,
and a commitment to staying vigilant to avoid infractions.
Ronda Butler
Harkey, a partner with USLAW firm, Orgain Bell & Tucker LLP,
practices in corporate immigration compliance, corporate and
employment-based immigration filings, and individual or family-based
immigration filings. She is experienced in drafting corporate
immigration compliance plans and is the author and presenter of
"Who's Who in Immigration Today," a paper on immigration
compliance law and procedure. Ronda can be reached at rbh@obt.com
and (281) 296-8877.
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