A June 13th program hosted by Proskauer Rose LLP reviewed the Department of Homeland Security's new initiative on immigration enforcement for an audience of private practitioners, corporate counsel, human resource professionals and government personnel. David Grunblatt, partner and head of Proskauer's corporate immigration practice, served as moderator, and the speakers were Christine Alber and Avram E. Morell, associates in the firm's Labor & Employment Department, and Ayesha Blackwell, associate counsel at Bristol-Myers Squibb.
Mr. Grunblatt opened the program by noting that this is an ominous time for immigration, with globalization of the world's economy pointing toward the free movement of people, products and services and Homeland Security and other agencies charged with our nation's security seeking to exercise an increasing degree of control over the process. He went on to note that not only is the employer most often caught in the middle of this discussion, the employer is being drafted as a somewhat reluctant agent of Homeland Security as that agency delegates - or perhaps abdicates - its responsibilities to the employer.
Ms. Alber pointed to certain employers with a particular risk of audit and investigation: those in security-related industries, including transportation and telecommunications; those in industries with a history of having employed undocumented aliens; and companies that are high-profile or were subject to complaints in the past.
In such an environment, Mr. Grunblatt asked, how does the employer protect itself? "Employers must institutionally prioritize immigration as a significant compliance issue," he said. He went on to cite the importance of involving senior management in the process and of establishing policies that designate who is responsible, and accountable, for immigration compliance matters. Ms. Blackwell added that, at Bristol-Myers Squibb, where a variety of constituencies across the company - human resources, staffing, general counsel, training, and so on - were concerned, it was essential to identify a person or the people responsible for, and develop a process for handling, the I-9 program. She went on to focus on training as a crucial element in building the right internal process, noting that high turnover rates in many human resource departments pointed to training as an ongoing imperative.
Mr. Morell reviewed a number of very practical concerns that arise in the I-9 visa process. He noted that the employee might work offsite and simply be unavailable to fill out the requisite forms at the appropriate time, or that the employer might lack the expertise to assess the validity of the employee's documentation or whether, if originally valid, it had expired and required reverification. He went on to offer several very specific recommendations for compliance with the I-9 process:
"Develop specific guidelines for your intake process and apply them consistently.
"Link the I-9 process to the intake process, and do it early , e.g the employee does not receive an identification badge or an e-mail account unless the I-9 process is completed.
"Conduct periodic training sessions for designated staff.
"Implement a tickler system to schedule reverification of documentation and to purge documentation no longer required."
Ms. Alber next addressed unauthorized employees, the situation that occurs when documentation that appeared valid at the time of intake turns out to be faulty. Her single most important recommendation to address this issue, she said, was to designate one office - even a single person - responsible for coordinating the company's institutional knowledge, assessing potential liability and administering a uniform and consistently applied process. It was also important, she noted, to establish reporting lines to the office charged with this responsibility, and to disseminate word of how to access the office throughout the organization.
She continued her discussion of the unauthorized employee by pointing to a fairly common occurrence in the merger or acquisition situation: the assumption by the acquiring organization of a very different attitude toward unauthorized employees in the acquiree. She noted that a merger between organizations with different corporate cultures - particularly with respect to something as closely scrutinized by the authorities as the immigration status of a company's employees - might lead to a very serious risk of liability if not addressed, but she went on to indicate that such a merger also provided an opportunity to train the acquiree's personnel and to impose a uniform and consistently applied process throughout the new enterprise.
After a very thorough discussion of another key issue in this area - that of a mismatch between what the employer and the government have as an employee's social security number - Mr. Grunblatt brought the program to a close with some thoughts about the increased responsibility, and accountability, for employers in the age of Homeland Security. He noted that if employers were to have a heightened responsibility to assess the validity of employee documents, it was only reasonable that a simplification of documentation be implemented to make that burden capable of being borne. And, he added, for electronic systems which are truly capable of verifying employment to be vetted before being put in place to ensure uniform and fair treatment of the issues. He noted that, while progress had been made on both matters, the wheels of government continued to turn at a very slow pace. He concluded his remarks by stating that employer vigilance would be a crucial ingredient of success in this area for the foreseeable future.