March 2007: Business Tools
IMMIGRATION POLICIES
Keep I-9s in order to avoid serious liability
With increasing frequency, the media is reporting on the
enforcement activities of the U.S. Immigration and Customs
Enforcement (ICE), the largest investigative arm of the U.S.
Department of Homeland Security (DHS). These enforcement
activities have included the indictment, arrest and conviction
of employers for “harboring illegal aliens” or for
“knowingly accepting fraudulent documents” from
persons not eligible to work in the United States. Other
enforcement activities have been directed at locating and
prosecuting illegal immigrants. All of this means business
disruptions for employers.
Just last month six facilities in six states — Colorado,
Iowa, Minnesota, Nebraska, Texas, and Utah — owned by
Swift & Company, one of the nation’s largest
processors of fresh beef and pork, were served with civil
search warrants. The result? The shutdown of production for
Swift and the arrest of 1,282 illegal workers on administrative
immigration violations, including 65 people also charged with
criminal offenses related to identity theft or other
violations.
Why the increased enforcement? Matthew C. Allen, of the ICE,
testified last July before a Congressional subcommittee that,
“Criminally charging employers who hire undocumented
aliens will create the kind of deterrence that previous
enforcement efforts did not generate. We are also identifying
and seizing the assets that employers derive from knowingly
employing illegal workers, in order to remove the financial
incentive to hire unauthorized workers and to pay them
substandard wages.”
Today, an employer must be vigilant in its review of documents
presented by employees to establish both their identity and
eligibility to work in the United States. To reduce the
possibility of criminal or civil liability for hiring
unauthorized workers, an employer should:
-
CAREFULLY REVIEW how
to complete the employment eligibility verification form
(I-9).
-
ANNUALLY AUDIT all
I-9 forms to ensure compliance with the law.
-
CORRECT ANY I-9 FORMS
found to contain errors during the annual audit.
-
TAKE PROMPT ACTION if
a “no-match” letter is received from the Social
Security Administration (SSA). Do not assume that the
employee does not have work authorization. Do not immediately
terminate the employee. Do give the employee a reasonable
time to correct no-match problems by giving him notice and
advising him to contact the local SSA office.
Remember, an employer is obligated to make I-9 forms available
for inspection when requested by an authorized officer of the
DHS or the Department of Labor with at least three days’
advance notice. No subpoena or warrant is necessary. The
inspection and review must take place at the employer’s
location where the I-9 forms are maintained.
Reducing potential liability for I-9 errors is easy. It just
takes time and a commitment of senior management.
— Ronald G. Guerra,
member,
Jordan Schrader
labor/employment law group,
ron.guerra@jordanschrader.com
