Immigration Laws Affect ALL Employers!

Thursday, July 1, 2004 - 01:00

If you are a U.S. employer, you have responsibilities under U.S. immigration laws. You don't hire foreign nationals, you say? You don't operate in an industry that lends itself to foreign workers? It doesn't matter! ALL U.S. employers are subject to the Immigration Reform and Control Act of 1986 (IRCA) requirements prohibiting unfair immigration-related employment practices and making all U.S. employers responsible to verify the "employment eligibility'" and "identity" of all employees hired to work in the United States after November 6, 1986.

Why It Should Matter To You - Penalties

The penalties for IRCA violations can appear relatively mild as long as there is no clear pattern; however, since penalties are assessed per violation, the total sum of potential penalties can become significant for employers with a sizeable workforce. Violations include things such as failure to complete an I-9 properly, knowingly hiring, continuing to employ or contacting to obtain the services of an unauthorized alien, or providing or knowingly accepting false social security cards.

The civil penalties range from $250 to $2000 for a first offense, up to $3,000 to $10,000 for a third or subsequent offense. The law also allows recovery for back pay and attorney fees (only if defense is frivolous), and may authorize orders to comply or reinstate the employee.

On the other hand, demanding excessive documentation can also result in substantial fines. IRCA's anti-discrimination provisions prohibit employers of four or more employees from discriminating against certain protected individuals (including permanent residents, temporary residents, special agricultural workers, refugees, and asylees).

The penalties for unlawful discrimination against individuals who have authorization to work are assessed for each individual discriminated against and range from $275 to $2,200 for a first offense, $2,200 to $5,500 for a second offense, and $3,300 to $11,000 for subsequent offenses.

Your Obligations: Form I-9

IRCA made the knowing employment of unauthorized aliens illegal. To verify that an individual is eligible for employment, the employer must complete a copy of Form I-9, "Employment Eligibility Verification," for each employee (even if there's only one). It is not necessary to complete I-9 forms for independent contractors. The employee must complete Section 1 of Form I-9 no later than close of business on his/her first day of work.

You can terminate an employee who fails to produce the required document(s), or a receipt for a replacement document(s) (in the case of lost, stolen or destroyed documents), within three (3) business days of the date employment begins. However, you must apply these practices uniformly to all employees. If an employee has presented a receipt for a replacement document(s), he or she must produce the actual document(s) within 90 days of the date employment begins.

When completing Form I-9, the employer must verify both the identity and the employment eligibility of the individual. The instructions on Form I-9 indicate the documents that an employer may accept in order to establish the identity and eligibility of the individual.

Employees who don't physically come to the employer's offices to complete paperwork may designate agents to carry out their I-9 responsibilities. Agents may include attorneys, accountants, personnel officers, foremen, notaries public, etc. An employer should choose an agent cautiously, since it will be held responsible for the actions of that agent. Caution: Employers should not carry out I-9 responsibilities by means of documents faxed by a new employee or through identifying numbers appearing on acceptable documents. The employer, or its agent, must review original documents. Likewise, Forms I-9 should not be mailed to a new employee to complete Section 2 himself or herself.

Documentation Requirements

Employers may accept only original documents and must perform a reasonable inspection of the genuineness of each document. Although not required to be document experts, employers are required to examine the document(s) and certify that "they appear to be genuine and to relate to the individual named." If, on their face, the documents do not appear to be genuine or relate to the person, the employer should not accept them (and, consequently, should not allow the person to begin working, even if the employer believes that the person is a U.S. citizen). If an alien's work authorization documents carry any restrictions, the employer must abide by them. Furthermore, employers should be aware that any social security number starting with a "9" is an invalid number.

If an employer learns that an employee whose documentation appeared to be in order for Form I-9 purposes is not actually authorized to work, the employer should question the employee and provide another opportunity for review of proper Form I-9 documentation. If the employee is unable under such circumstances to provide satisfactory documentation, employment should be discontinued.

An employer cannot demand to see certain documents; employees must be allowed to present any of the documents that have been deemed acceptable as verifying employment authorization and identity. Therefore, employers may only require the minimum identity and employment documents as described above. Employers may not require any specific or additional documentation. At the core of this condition is the requirement is the prohibition against "national origin discrimination" under federal employment discrimination and immigration laws. In short, an employer cannot selectively hire, or refuse to hire, nationals from certain countries for any reason. In contrast, limiting hiring to individuals of a certain immigration status (generally) is permissible.

If an employee initially presented false documentation to gain employment and subsequently presents proper work authorization, U.S. immigration law does not require the employer to terminate the employee's services. However, an employer's personnel policies regarding provision of false information to the employer may apply.

Acceptable And Unacceptable Employer Practices

If it appears that there have been mistakes made or I-9 forms have been incorrectly completed, you may wish to re-verify the employee or 'correct' the I-9. When correcting an I-9, the original information should NEVER be altered. Mistakes (called 'technical errors') should be corrected by adding or amending the information on the form and these corrections should reflect the actual date made. If there is a large gap in time or a significant discrepancy on the form, it would be prudent to write a memo to the file explaining the situation. If realizing the mistake results in putting you on notice that an employee is not authorized, then you are obligated to take steps to obtain the correct documentation or terminate the employee.

Acceptable:

• Providing the employee a list of documents that can be used to verify status on his/her first day of work.

• Telling the employee that receipts showing an application for documentation are fine if s/he already has employment authorization.

• Asking questions about name changes.

• Making sure the documents the employee provides are on the lists of acceptable documents.

• Reviewing presented documents for authenticity. (Looking for obvious signs of tampering or forgery.)

• Rejecting presented documents if it's an obvious fake. (If it looks valid on its face and is listed as a qualified document on the I-9, you should accept it.)

• Keeping I-9s for the longer of three years, or one year after employment ends on microfilm or microfiche.

• Re-verifying employees whose original documents have expired or when it becomes clear a mistake was made.

Unacceptable:

• Telling the employee which document(s) to present.

• Telling the employee that certain document(s) are preferred.

• Rejecting document(s) that are not obvious forgeries or show signs of tampering.

• Accepting photocopies of documents or accepting laminated social security cards.

• Considering the expiration of an individual's eligibility date, no matter how close that date is to the hiring date.

• Recreating a form (to replace an original).

• Backdating the form or any information therein.

Note On Handling Invalid Social Security Numbers

Due to policy changes, the Social Security Administration (SSA) will now notify you of your obligation to correct every occurrence if any mismatch of name and social security number is detected. It is important for employer's to realize that this letter alone does not establish that the employee involved lacks authorization to work in the U.S. Some things to remember if you receive this type of letter:

• Don't assume that the listed employee is illegal. There could be a number of valid reasons why a mismatch occurred, e.g. name change or clerical error.

• Don't terminate the listed employee (or take any other disciplinary action) on the basis of the letter alone.

• Don't assume you immediately have to re-verify employee eligibility status.

• Do verify your records to ensure that you were not the cause of the error.

• Do give the employee a copy of the mismatch letter and explain its purpose.

• Do inform the employee that he or she should contact the SSA to resolve the issue and then report back to you on the outcome.

• Do provide the employee a reasonable amount of time to follow through.

• If the error is not correctable through the SSA, then the employer has potential liability under both the Internal Revenue Code and the U.S. immigration laws.

What To Do If The Government Wants To Inspect Your I-9s

• Don't consent to an immediate inspection if agents show up without notice; you have up to three days to respond. Call your attorney immediately.

• Don't let agents take original records; provide copies. Call your attorney.

• Don't allow officers to talk with employees before you call your attorney.

• If Department of Labor agents show up for an inspection without notice, decline the inspection. They'll notify the USCIS.

• If USCIS discovers technical errors on I-9s, you have 10 days to correct them.

How You Can Protect Yourself: Training & Audits

To avoid problems with employing foreign workers, consult an attorney who can train your human resource personnel about proper procedures and then conduct private internal audits to review and correct any errors and help ensure IRCA compliance. These periodic audits can uncover problems early, in time to be corrected before the imposition of sanctions. Furthermore, such audits demonstrate the employer's 'good faith' efforts to comply with IRCA's verification requirements. Private audits also reveal systemic problems in an employer's IRCA compliance program, such as the failure to retain necessary records, the failure to re-verify when required, and the repetition of errors in the completion of I-9 forms. Once such problems are identified, steps can be taken to correct them, thereby avoiding costly penalties.

Alka Bahal is a Principal with Grotta, Glassman & Hoffman, P.A., where she chairs the firm's Immigration Practice Group. She may be contacted at (973) 992-4800 or via e-mail at immigration@gghlaw.com.