Protecting Your Business: Key Employer Tips for I-9 Compliance
For most employers, finding and recruiting competent, trust-worthy employees is a challenge. Having found such an employee, many employers overlook the fact that they must maintain their vigilance throughout the I-9 proceedings as well - or risk serious civil and criminal penalties handed out by Immigration and Customs Enforcement (ICE). All too often, employers who don't want to give up their hard-won, reliable staff attempt to "fudge" I-9 compliance issues. Considering that in the not too distant past employers were allowed to focus on running their business without functioning as Junior Immigration Officers, this attitude is not unreasonable. However, as ICE continues to increase both its sting operations and its raid operation, all employers must face the facts - is keeping a key staffer worth paying a huge fine? Is it worth going to jail?
Since the reorganization of the INS into multiple separate entities under the Department of Homeland Security, employer I-9 enforcement has been on the rise. ICE, which now has jurisdiction over immigration enforcement, now has more money and people than ever before - and they're expanding the scope of their raids and sting operations away from security-sensitive areas and going after all employers. Moreover, they're moving away from the old-style of punishment, which usually included a slap on the wrist and a several thousand dollar fine, and they're pursing criminal prosecution of business owners and managers. So what can employers do to protect themselves?
- Implement a Corporate Polity to Address I-9 Verification. Every business should have an official written policy in place which addresses how responsible persons will handle I-9 verification and what steps to take in the event that there is a problem in the verification process. The policy should also make clear the importance of non-discrimination in the application of the policy as discriminatory practices could lead to trouble with the Office of Special Counsel.
- Make sure H.R. Personnel and / or Managers Receive Adequate I-9 Training. If the business owner or executive will not be the individuals assisting employees with I-9 verification, persons who will be directly responsible for this task should be well trained. A failure to follow the rules by H.R. or the responsible managers could be imputed to owners and executives as constructive knowledge and civil files and jail time are real possibilities.
- DO NOT Churn No-Match Letters! Many employers erroneously believe that they are complying with the law when they respond to "no-match" letter from the Social Security Administration (SSA) solely by telling employees to fix the issue with the Social Security Administration SSA but never following up. This is not true. Furthermore, many employers incorrectly believe that so long as every time they receive a no-match letter on an employee, so long as the employee claims a clerical error on the form and switches a numeral, they have discharged their duty in the face of a no-match letters - even when resubmission continues to generate no-match letters. This is not true. ICE has consistently cited the number of unresolved no-match letters as a factor in enforcement actions. Proposed DHS regulations reference a series of steps that employers should take in the face of a no-match letter which would provide adequate evidence of a good faith effort by the employer to ensure that they are in compliance.
- DO NOT Try to Hide Behind Subcontractors! Following the $11 million fine levied against Wal-mart in 2005, ICE has made clear that culpability of the subcontractor will be held against the principle. Employers who use subcontractors should consult legal counsel to find out what they can do to protect themselves.
- Pay Attention to Local Ordinances Affecting I-9. Various counties, municipalities, and states have enacted employment verification requirements. In Dorchester County, SC, business licenses are conditioned upon attesting to not employing undocumented aliens and the county reserves the right to audit employer records. Employers should take care to seek local counsel for advice on the effect of local legislation.
- Consult Legal Counsel. Seek out legal advice from an attorney specializing in immigration and employment issues. The regulations and case law interpretation of the regulations of I-9 compliance are constantly changing. Find an attorney who can assess the needs of your business and provide help you need.
