HR Hot Topic #3 - Immigration
The debate on how to handle immigration reform continues to be a very hot political and societal issue. In August of this year, the Department of Homeland Security (DHS) issued the final regulation on the procedures employers would have to follow after receiving “No-Match” letters from the Social Security Administration. A no-match letter is a letter from the Social Security Administration that informs an employer of a mismatch between an employee’s name and Social Security Number as reported on W-2 forms and in Social Security Administration records. The regulations gave employers 30 days to start a process of attempting to resolve the discrepancy and 90 days to have it resolved. If it is not resolved in that time frame, the employer had an additional 3 days to complete a new I-9 form as if the employee was just hired.
On August 31, a Federal judge in Northern California placed a temporary restraining order on the implementation of DHS regulations. In October, this temporary restraining was extended until a trial can be held. This will probably take several months to a year.
While the politicians and the courts continue to fight this battle, business must continue. So what does the future hold? Until the courts battle out this situation, we’ll have to wait and see.
However, DHS and the Immigration and Customs Enforcement (ICE) have other plans. ICE is taking the offensive and aggressively seeking out employers who knowingly hire and retain employees who are not authorized to work in the United States. In many cases, they are filing criminal charges against business owners for harboring illegal aliens. Mark Wollman, acting special agent in charge of the ICE office of investigations in San Francisco was recently quoted as saying, "ICE will use every tool at its disposal to target businesses that exploit an illegal workforce to turn a profit." Many of these charges started with a review of the I-9 forms.
(https://www.ice.gov/pi/investigations/worksite/newsreleases.htm) This is a link to the workplace enforcement actions taken by ICE. You will see that it covers all corners of the country and many different types of businesses.
According to Melissa Dearing, an immigration attorney with the law firm Fowler, White, Boggs, Banker in her presentation at the Hot Topics in HR held on October 30, “Even before the Final Rule was published, ICE has taken the position that receipt of social security no match letters can constitute evidence that you are employing an unauthorized alien. In fact, ICE has initiated a number of enforcement actions, using as evidence the employer’s receipt of no match letters.” Ms. Dearing also noted a recent case involving Schichtel’s Nursery Inc. In May 2006, ICE arrested 34 illegal aliens and was continuing its investigation to determine whether any of the employer’s agents should be held liable. The investigation was the result of a governmental I-9 audit, which disclosed that most of the alien registration numbers provided on the I-9s were either legitimate cards used by the wrong individual or fraudulent cards not issued by the Department of Homeland Security.
To protect yourself and your business, ensure that you have completed I-9 forms for all of your employees hired after November of 1986. I-9 forms are to be kept by employers for 3 years or one year after the date of termination – whichever is longer. We recommend that they be kept in a 3-ring binder and filed alphabetically.
When completing the I-9, take a close look at the language in Section 2 – which is the section the employer must complete. It states,
“I attest, under penalty of perjury, that I have examined the document(s) presented by the above-named employee, that the above named documents appear to be genuine and to relate to the employee named, that the employee began employment on (month/day/year) _________ and that to the best of my knowledge the employee is eligible to work in the United States.”
Please note the words, under penalty of perjury, appear to be genuine and relate to the employee. Many illegal workers are using documents that are obviously forged, while others are using documents that belong to another person. By taking a few seconds to inspect the documents to ensure they appear to be genuine and relate to the employee, you are doing what you have to do to protect you and your company.
In our practice, we rarely see companies that are totally in compliance in the completion of their I-9 forms. We recommend that you conduct a comprehensive audit of all of your I-9 forms with two things in mind. First, are all of the required spaces on the form completed correctly? The second is to ensure that all current employees have an I-9 form for them.
We do not recommend that you keep copies of the documents used to verify identity and employment eligibility. The reason for this recommendation is because the Immigration Control and Reform Act of 1986 does not require that copies be kept, so by doing so, it does not help your cause and the copies can only be used against you.
It only takes a couple of minutes to properly complete an I-9 form on the date the employee is hired. There is no excuse for not having the form completed in a timely and accurate way.
Let us know if you need any assistance with your I-9 audit.
Thanks and have a wonderful Thanksgiving. We have a lot to be grateful for.