Employers: scrutinize I-9 documentation
As businesses hire new workers for the ski season, immigration officials encourage personnel departments to scrutinize documents presented with I-9 forms, participate in verification programs like E-Verify and speedily react to notices of incongruities from the Social Security Administration.
There is no way to 100 percent safeguard your company from hiring an illegal worker or to avoid prosecution from the U.S. Immigration and Customs Enforcement, said Pat Reilly, a spokesperson for ICE, but her office asks businesses to perform "due diligence."
"If we think you have a predominantly illegal workforce, it’s because of steps you’re not taking, not steps you are," she said. "What we’re looking for is people exploiting vulnerabilities."
There are also limits as to what measures a business can take to verify its own compliance with immigration laws. Employers may not ask to see any documents other than the ones presented by a prospective employee if they meet the requirements of the I-9 (Employment Eligibility Verification Form), explained Bill Wright, a spokesman for U.S. Citizens and Immigration Services (USCIS).
It is also against the law to discriminate against an applicant because they look or seem foreign. The laws protecting applicants often only apply to companies with more than 15 employees, but ignoring the laws could land smaller companies in a legal quagmire, advised, Mark Wagner, an employment attorney with Van Cott, Bagley, Cornwall & McCarthy.
"An employer’s job is to take reasonable steps to obtain appropriate documentation that the identity of the person is valid and that they have a legal right to work in the U.S. If documents look good on the face, the employer is prohibited from taking further actions," he said.
Kim Mayhew, human resources director for Deer Valley, said that with a little training it isn’t difficult to catch obvious fakes in regards to documents. She has also found information booklets provided by the government to be helpful in staying compliant.
Wright with USCIS encourages all employers to register with the government’s E-Verify program and run a new employee’s information through the database.
E-Verify has been criticized for problems and is still in development, but Wright believes it can be useful in identifying obvious problems with an employee’s information in a speedy manner.
If the program red-flags any information entered, it doesn’t mean there’s a problem with the person, it just means further investigation is needed, he said.
"It’s not a screening program. It’s only to verify status. That’s what it’s for, and about 94 percent of inquiries (that’s 5.5 million) have come back in three to five seconds," he said.
Registering with and using E-Verify is currently voluntary for most employers in most states, but if an employer chooses to wait to receive notice from the Social Security Administration of a problem, a lot of time and resources have been wasted on both sides, he said.
"There’s no fool proof way (of being sure), and there’s been much criticism of the program that it doesn’t prevent identify theft or fraud, but it’s always being updated," he said. "If an employer signs up for the program, is checking finalists (for positions), then they’ve taken the right steps."
A new feature being introduced to prevent identity theft and fraud is photographs included in the database, but currently only about 17 million are available nation-wide.
If a problem does arise with any of the information sent in on an I-9, the Social Security Administration will notify an employer with what is commonly called a "mis-match" or "no-match" letter, employment attorney Wagner explained.
At that point, it is the employer’s responsibility to verify the accuracy of the information given by checking their own records first. If their own paperwork is correct, they are then supposed to notify the employee of the discrepancy and allow them to resolve the issue. If the employee does not resolve the issue in a reasonable amount of time and the company fails to see the issue through, it "proceeds at its own risk," he said.
Time and resources can be saved by self-auditing records and hiring auditors to double-check paperwork, said Roger Tsai, an immigration attorney with Parsons Behle & Latimer.
"The Intermountain region is one of the most highly fined areas in the country by ICE," he said. "Errors can cost an employer $1,000 per employee."
Sometimes companies are fined heavily by ICE and other enforcement agencies to the tune of tens of thousands of dollars for poorly kept documents — even when no illegal workers were involved, he said.
If a company is concerned about unknowingly or unintentionally being found non-compliant, they can participate in programs like IMAGE, which stands for ICE Mutual Agreement between Government and Employers.
The program requires companies, among other things, to register with E-Verify, specially train its personnel workers in processing I-9’s and set up a "tips" hotline for employees to call if they’re aware of information that deserves investigation.
Only several dozen companies nationwide are participating so far, but Reilly believes it will become standard procedure for large companies worried about protecting reputations and a brand.
"Why do it? It tells people who use their service or contract with them that they are using the highest standards of hiring in their business," Reilly said.
Immigration attorneys like Tsai and Sister Charlotte Wagner with Holy Cross Ministries are concerned about the fairness of putting the burden of proof on employers.
"It’s very difficult for an employer to know or tell if a document is good," said Sister Wagner.
The legal term for how the government decides whether to prosecute an employer is if they had "constructive knowledge" of their incompliance.
What constitutes "constructive knowledge," is murky, she said.
Tsai mused: does the receipt of a "no-match" letter constitute it? Courts have come down on both sides of that issue. Does a rumor about an employee’s status constitute it? Tsai said he doesn’t know.
The current problems with E-Verify and the lack of guarantees offered in return for participation in programs like IMAGE, leave a lot of gray areas in what an employer can expect in return for diligence, Tsai explained.
"Not the best of tools are provided out there," he said.
E-Verify and the programs have never been mandatory because the government realizes its programs are not up for prime time, Mark Wagner said.
Furthermore, because ICE belongs to the enforcement branch of government, it can only promise so much in return for participation since the most serious punishments come from the judicial branch, he said.
"Employers are caught in this very tight walk trying to maintain legal workers, but only working with the information given," Tsai said.
He’s also concerned about the number of times that naturalized citizens or legal immigrants are red-flagged in the E-Verify program, forcing them to spend un-paid time trying to figure out the problem with government bureaucracies.
Wright and Reilly are both confident that the programs are constantly improving and that new developments with them, such as the addition of photography, will solve most problems.
Reilly said she advises employers to be fair by applying the same procedures in investigating all workers, regardless of background. She also said to do nothing that would send a message to illegal workers that it’s easy to be hired there.
If an employer does these things, she said, prosecutors will take into account the "totality" of circumstances if legal action is taken against them.
Warnings, suggestions and warning signs:
-Industries that typically hire a large number of immigrants should be wary when an abnormally large number of them fill out their I-9 saying they are citizens.
-If employees are presenting identical ID issued from the same state, territory or U.S. locality (or if there is a surge in such documents).
-If the seal on a SSN card reads something other than "Social Security Administration"
Security features include raised (intaglio) printing and the signature line consists of a microline printing of the words "Social Security Administration" in a repeating pattern.
-It is unlawful to discriminate based upon citizenship or immigration status.
-It is unlawful to discriminate because of national origin or foreign appearance or accent.
-An employer should not request more or different documents or refuse to honor documents that appear genuine and relate to the individual.
-Respond to Social Security "Employer Correction Requests" also known as "no-match letters" indicating that the SSN number did not match with SSA records. Verify with your own records and with the employee. Encourage the employee to verify the issue with the employee. Check all records to verify accuracy if the SSN cannot be identified.
-ICE does not recommend taking adverse action against any employee based solely on these advisories, but encourages them to be used to identify relevant information that may warrant further investigation.
-Arrange periodic audits of I-9s by an external firm or someone who has undergone verification training.
For more information:
E-Verify is linked through http://www.uscis.gov
IMAGE is explained at http://www.ice.gov through the menu option titled, "Partners."
A handbook is available at http://www.uscis.gov/files/nativedocuments/m-274.pdf
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