Hiring immigrants has long been the American way of getting the job done.
Today, though, employers need to tread more carefully over what has become rougher legal terrain. “Some laws even mandate jail time for repeat offenders,” notes David Kotick, managing partner of Apsan Law Group, an immigration law firm in New York.
“The employer must have each hired individual fill out an I-9 form, titled ‘Employment Eligibility Verification,’ issued by the U.S. Citizen and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS),” cautions Carlina Tapia-Ruano, partner at Chicago-based Tapia-Ruano & Gunn, an immigration law firm (www.trgpc.com). To avoid any appearance of discrimination, the law requires that you have individuals complete this form only after being hired, not during the recruitment process.
You can download a copy of an I-9 form from www.uscis.gov. Click on “Immigration Forms” and then “Employment Eligibility Verification”or I-9, toward the bottom of the list.
On part one of the I-9 form, the employee enters basic information such as name, address, social security number and date of birth. Just as important is the section on the employment status of the individual. There are only three choices here: The individual is either 1) a U.S. Citizen, 2) a legal permanent resident or 3) an alien authorized to work until a given date. The employee must sign and date the form.
In part two of the form, you must certify that you have made sure the documents provided by the employee establish the individual's identity and employment authorization. What documents are acceptable? There is an extensive list on the back of the I-9 form. Any one document from a list of 10 is acceptable as proof of both identity and employment eligibility. (A passport and a permanent resident card are two examples.) Additionally, there are nearly two-dozen additional documents that have been certified as proof of one of the two criteria.
Part three provides space for updating the form's information after a worker's previous work authorization has expired.
“Many attorneys recommend that employers attach photocopies of the reviewed documents to each I-9, to help protect the business in the event of an audit,” notes Tapia-Ruano.
Failure to ensure that documents are authentic and that all of the blanks are filled in correctly can incur penalties ranging from $1,000 to $10,000 per violation.
Avoid these common errors when completing the I-9 form:
Illegal bias: Avoid charges of discrimination by requiring every employee to fill out an I-9 form, regardless of their ethnicity.
Entry errors: Verify employees' immigration status. An employee with a work visa, for example, may have erroneously filled in “permanent resident.” This mistake is significant even if done innocently.
Overly restrictive documentation: Avoid requiring documentation that is more restrictive than what the law mandates. It is illegal and can lead to fines and discrimination charges. “You must accept the employee's decision as to which of the documents listed on the I-9 to provide,” notes Tapia-Ruano.
Failure to assess authenticity: The employer must not accept documents that a reasonable person would suspect were fraudulent either because they look doctored or look like duplicates.
Allowing expiration dates to slip by: Many employees have permission to work for only a limited period of time. “You need to continue to verify the employment status of an individual throughout the period of employment,” cautions Tapia-Ruano. Ask the employee to present new verification documents before they expire.
SAFE HARBOR RULES
The U.S. Social Security Administration (SSA) may send no-match letters to employers when workers' names and Social Security numbers on W-2 forms do not match SSA records. Should a worker who cannot reconcile the discrepancy be fired, you may wonder.
“In many cases employers have kept the employees on board, fearing that a termination decision based on a no-match letter might lead to discrimination charges,” notes Angelo Paparelli, managing partner of Paparelli & Partners, an immigration law firm in New York City and Irvine, CA (www.entertheusa.com). “There can be legitimate reasons why a no-match occurs. An employee might have married, for example, and changed her name without notifying the SSA. Or the SSA could have misspelled the name.”
Indeed, the Web site of the U.S. Immigration and Customs Enforcement division of the DHS states “an employer who takes action against an employee based on nothing more substantial than a mismatch letter may, in fact, violate the law.”
In August 2007, DHS issued new regulations to clarify matters while providing a safe harbor for employers who hire foreign nationals. The regulations define what steps employers must take within what time frames to avoid legal liability for hiring undocumented workers.
Employers still face the costly task of double-checking documents. “The employer who fails to carry out the defined steps risks being charged with ‘constructive knowledge’ of the employment of workers who lack the right to work,” cautions Paparelli.
An injunction by a federal court in late 2007 delayed implementation of the new regulations. The government intends to revise the safe harbor rules to satisfy the court's concerns. This delay provides employers additional time to study the proposed rules.
Many feel that recent changes in federal regulations represent an attempt to shift the border control effort from the government to the private sector. As the face of America's workforce changes, you can be sure there will be additional changes in federal, state and local regulations.
UNDERSTANDING EMPLOYMENT VISAS
Documents that certify that foreign nationals - people who are natives of other countries - are eligible to work in the U.S. are called employment visas. There are a host of different kinds. (To peruse them with explanations, go to www.unitedstatesvisas.gov, and http://travel.state.gov/visa.)
Many employers hire unskilled workers with H-2B visas, valid for temporary employment for up to a year. “There is a tremendous need for people to fill such positions in this country,” notes David Kotick, managing partner of Apsan Law Group, a New York immigration law firm.
Arranging for H-2B visas can take up to four months. The process begins when the employer obtains a labor verification from the U.S. Department of Labor. Then the employer files a petition with the Department of Homeland Security. When that petition is approved, the worker can apply for a visa and a passport from the U.S. consulate in his or her own country. The U.S. limits such visas to 66,000 annually.
SAFE HARBOR FOR EMPLOYEES
In August 2007, the U.S. Immigration and Customs Enforcement division of the Department of Homeland Security issued new regulations that defined the steps to be taken by employers receiving no-match letters in return for safe harbor from prosecution. At the same time, the regulations provided for increased civil or criminal penalties for employers who fail to comply.
Here is a brief synopsis of what employers are required to do in the event of a no-match letter:
Within 30 days, check records to ensure that the mismatch was nota clerical error.
If this does not resolve the problem, ask the employee to confirm the accuracy of your records.
Ask the employee to resolve the issue with the SSA within 90 days from the date you received the no-match letter.
If the employee can successfully resolve the mismatch, ensure that the instructions in the SSA letter are followed.
If the issue is still unresolved, initiate another verification round as if the employee was newly hired.
Late in 2007 a federal court issued a preliminary injunction barring implementation of the safe harbor regulations, citing, among other reasons, a high incidence of errors in the government's Social Security database.
Even so, the government intends to issue revised rules in 2008. “Employers are remiss to think the injunction will cause the problem to be put on the back burner,” cautions Angelo Paparelli, managing partner of Paparelli & Partners, an immigration law firm in New York City and Irvine, CA (www.entertheusa.com).
To stay abreast of related developments, visit the U.S. Immigration and Custom Enforcement Web site at www.ice.gov.
Employers requiring legal assistance on immigration law may turn to resources such as: