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October 2013
WORKSITE ENFORCEMENT & EMPLOYER COMPLIANCE from an Immigration Law Perspective: How Hard Can It Be?
By Jennifer Cory

     Famous last words... Since the enactment of the Immigration Reform and Control Act in 1986 (IRCA), federal and state governments have become increasingly determined to shift the burden of immigration law enforcement to U.S. employers. State legislatures, concerned that the federal government is not doing enough to enforce current law, are now enacting their own pieces of immigration law, making it a challenge for employers to do business in multiple states and apply corporate policies evenly. This shift has resulted in a minefield, one that even the most diligent and well-intentioned employer has difficulty navigating unscathed.

     Following the tragic events of 9/11, Congress passed The Homeland Security Act of 2002 to address perceived deficiencies in our immigration law, and creatie the Department of Homeland Security (DHS). Two of DHS’s agencies, U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (ICE), are now tasked with ensuring that U.S. employers are IRCA-compliant.

     USCIS is responsible for immigration benefits, for Form I-9 Employment Eligibility Verification (Form I-9) and for the federal e-Verify employment eligibility verification program. ICE is tasked with penalizing violators. Too often, the two agencies interpret provisions of the law differently, with employers forced to rely on a maze of unofficial policy guidance as to how best to comply.

     For example, an employee in H-1B status may begin working for a new employer upon the filing of a petition with USCIS; however, it is not clear how to reflect such authorization to work on the Form I-9 absent an approval from USCIS. In the case of an ICE investigation, questions may arise as to whether the individual is indeed authorized to work for the new employer.

     The stark reality for today’s employer is that it is not just a matter of ensuring that a Form I-9 is properly and timely completed for a new hire. Many states and federal contracts now also require that employers register with e-Verify, making mandatory what was once touted as a voluntary federal program.

     The interplay between Form I-9 completion and e-Verify confirmations can be confusing. For example, an employee with expiring work authorization must be re-verified for I-9 but not e-Verify purposes. Misuse of the two programs can trigger investigation by the U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices in the Civil Rights Decision (OSC) for unfair hiring practices.

     At a minimum, today’s prudent employer should have a written hiring and employment eligibility verification policy in place. This should include an internal compliance and training program related to the hiring and employment verification process, explaining: how to complete Form I-9 and whether to maintain copies of supporting documentation, how to identify fraudulent documents, and how to use e-Verify and the Social Security Number Verification Service (SSNVS) for wage reporting purposes (if part of the employer’s policy).

     Employers should require that Form I-9 completion and e-Verify confirmations be performed by specific employees who have received proper training. A further layer of review should be required to ensure any mistakes are quickly corrected. Employers should conduct annual audits, either using an external auditor or a neutral reviewer within the organization. Employers may also want to consider contractually binding subcontractors to these same standards.

     The written hiring and employment eligibility verification policy should include directives concerning how to handle letters from government agencies about conflicts in information between the agency, employer and/or employee. A prime example for this directive is to know how to handle the receipt of a “no match” letter from the Social Security Administration (SSA) which advises an employer that an employee may be using a social security number that does not coincide with SSA records.

     Employers should also consider including a provision for a “tip line” so that employees can report suspected incidents of unauthorized employment and a method for handling and investigating these tips. In addition, employers should ensure that authorized employees are not treated differently on the basis of citizenship or national origin in the hiring, firing or recruitment process.

     And this is just the tip of the iceberg. The USCIS also conducts site visits to investigate potential visa fraud by employers. The Department of State (DOS) has the authority to review visa applications for potential fraud and recommend revocation of approvals previously issued by USCIS.

     The Department of Labor (DOL) routinely audits applications by employers sponsoring foreign workers for permanent employment certification (the first step in the “green card” process). These audits and investigations are pitfalls for the unwary and can lead to enormous expenditures of time and resources if not handled properly.



Jennifer Cory, J.D., is a Partner at Garfinkel Immigration Law Firm.
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