Complying with Immigration Law

In 2009, the federal government issued thousands of notices to businesses, informing them they would be audited by Immigration and Customs Enforcement (ICE) for compliance with immigration law. Presently, ICE is conducting approximately 10 times more audits than it did under the Bush Administration. Meanwhile, the DHS has pledged to increase the number of agents and resources devoted to enforcement actions against employers of the undocumented.

These audits have been conducted against numerous North Bay employers already.

In this time of greater enforcement of immigration compliance laws, it’s especially important employers take steps to comply with requirements. Here are a few tips:

The I-9 form

The bedrock of the immigration compliance program is the DHS I-9 form, which employers are supposed to fill out when they hire anyone. Its purpose is to ensure the identity and employment authorization of workers. The law requires all employers to fill out an I-9 form for all employees hired since November 6, 1986, regardless of their immigration status. The entire form is supposed to be filled out within three days of the employee starting work. The form and instructions are available at www.uscis.gov.

The I-9 form has two parts. In the first section, the employee states he or she is a citizen, lawful permanent resident or alien authorized to work temporarily. In the second section, employers attest they’ve examined original documents verifying the employee’s identity and eligibility to work. Here are some things to remember:

 

• Fill out the I-9 completely and make sure it’s signed. Sloppy paperwork is often a basis for increased scrutiny and penalties from the government.

• Set up a system for updating these records. For example, a tickler system should be set up to remind your staff when certain employment authorization documents expire so they can verify if they’ve been renewed.

• Personally view the original documents presented by the employee. You can make a copy, but you are not required to do so.

• Keep the I-9 form on file for three years from the date of hire or one year after the last day of work, whichever is later.

• The I-9 can be stored in its original form, microfilm, microfiche or electronically.

• File the I-9 forms separate from the employees’ personnel files.

• Have a written set of policies that your staff can follow in completing the I-9s.

 

Independent contractors

Employers aren’t required to complete an I-9 for independent contractors, but the use of independent contractors cannot be used to evade the I-9 requirement. Recently, ICE has made an example of several employers who used independent contractors to perform tasks, such as janitorial work or agricultural labor, when it was (or should have been) obvious that these contractors weren’t adhering to immigration laws.

Make your independent contractors set up an I-9 compliance system that meets the requirements of the law, and make it a condition of your contract that this system be maintained and you have access to it to ensure compliance.

 

No knowing employment of undocumented workers

The law prohibits any person or entity from knowingly hiring or continuing to employ an unauthorized worker. Knowledge may be either “actual” or “constructive.” This means the government can infer that an employer knew its employees were undocumented from any number of circumstances. Recently, the government has broadened the interpretation of constructive knowledge to include instances, for example, where an employer simply failed to reverify an employee’s expired right to work. Most prevalent is finding constructive knowledge when the employer ignores a “no match letter” from the Social Security Administration or other information that the employee is out of status. Recently, an employer in San Diego was indicted because they paid undocumented workers cash after getting a “no match letter”; they are now facing the potential of 5 years in prison.  No match letters must be handled properly.

The government can also claim employers violate the law if they “recklessly” rely on employees to comply with the I-9 laws. Because whoever completes section 2 of the I-9 does so on behalf of the employer, the government takes the position that any knowledge acquired by the person completing the I-9 is imputed to the employer. This makes it even more important that businesses have clear, well-defined, written procedures for compliance with the law. Here are some tips on those procedures:

 

• Ensure the employee fully completes the I-9.

• Don’t ignore “no match” letters from the Social Security Administration or similar notifications from other government agencies indicating that an employee of yours lacks the right to work.

• Whenever you’re provided such information by the government, require the employees to provide documentation verifying they’re authorized to work.

• Apply these policies uniformly.

• Make sure that your employees responsible for I-9 compliance are well-trained and follow clear written guidelines.

 

Exemption and compliance

Most important to avoiding fines or penalties is demonstrating your company’s good faith compliance with the law.   You do that by ensuring you’re setting proper policies, creating a company compliance manual and training employees who complete the I-9 forms.