Reports of recent immigration raids at U.S. worksites indicate the extent to which the U.S. government views the employment verification process as key part of its enforcement investigations and its efforts to track down and remove undocumented workers inside this country. Immigration laws affecting employers can be found throughout this website. Current immigration law counseling has been emphazising on employment verification services and advising corporations about compliance with I-9 employment verification form and procedures, as I-9 is the key document to good immigration related employer practices.

In 1986, the enactment of the Immigration Reform and Control Act (IRCA) as amended, required employers to verify the identity and eligibility of every worker, whether U.S. citizens or not, hired after November 6, 1986. IRCA created civil and criminal penalties to employers who knowingly hire or continue to employ persons who are not authorized to work in the United States. Those with a pattern and practice of violating the law are now subject to criminal sanctions. IRCA provided that employers and recruiters or referrers for a fee were required to complete and retain an Employment Verification form (Form I-9) for all employees, including United States citizens.

In 2003, the Bureau of Immigration and Customs Enforcement (ICE) was created to enforce U.S. immigration and customs laws and verify employment compliance.

Social Security “No-Match” Letters

The subsequent action (or inaction) by the employer after receiving a no-match letter, as well as the letter itself, is considered in determining whether under the “totality of circumstances” the employer had “constructive knowledge” that the employee was working without authorization. Therefore, I-9 violations by the employer may not be excused under the good faith compliance defense.

DHS estimates that as many as 10 percent of the 250 million W-2s the Social Security Administration (SSA) receives each year belong to workers whose names do not match their Social Security numbers. However, many causes for no-matches, include typographical errors and name changes. Employers should follow the SSA Guidance with regards to Employer Response to No-Match Letters.

Last August 10, 2007, the Department of Homeland Security issued new "No-Match" regulations that require employers to resolve discrepancies between their employee records and those of the SSA or the DHS. Also, the no-match letters issued by the SSA for Tax Year 2006 will be accompanied by a letter from ICE informing employers on how to respond to the employer no-match letter in a manner consistent with obligations under U.S. immigration laws.

According to this new rule, once the employer is put on notice by the SSA or DHS of a discrepancy in Social Security number or immigration status information, the employer has 93 days within which to re-verify the information. If the employer is unable to correct the discrepancy within 93 days, the employer has two choices: either terminate the employment and risk lawsuits by employees or continue the employment and risk severe civil and criminal sanctions from DHS. Employers should also be aware that the Equal Employment Opportunity Commission is concerned that this regulations encourage employers to take actions that violate Title VII and/or [immigration law's] nondiscriminatory provisions.

Government Audits

Audits can be conducted by ICE or the Department of Labor. On receipt of notice to audit, company representatives should seek legal counsel immediately. An employer must be given three days notice before an audit takes place, although additional time may be negotiated. Since many employers are not able to distinguish valid employment authorization documents, the USCIS developed a Basic Pilot Employment Verification Program that allows employers to check employment authorization documents against a DHS and SSA databases.

In June 2006, a new interim rule published by the Department of Homeland Security (DHS), provided that employers who are required to complete and retain Forms I-9 may sign and retain these documents electronically. This rule does not require employers to adopt electronic storage technology.

The Future

If well meaning comprehensive immigration reform was enacted into laws, the relationship between employers and ICE could take a significantly positive turn, which would ultimately benefit all parties.

Last August 10th, 2007, Department of Homeland Security Secretary Michael Chertoff and Commerce Secretary Carlos Gutierrez also announced a series of reforms that the Administration will pursue to address border security and immigration challenges ("Improving Border Security And Immigration Within Existing Law"). The reforms include a requirement that all Federal contractors and vendors use the Federal Electronic Employment Verification System (E-Verify) to ensure their employees are authorized to work in the US. Many of us believe that since Congress was unable to enact workable comprehensive immigration reform, the Administration decided to aim enforcement methods on employers.

Our Recommendations

With an increase in workplace enforcement and criminal penalties, it is more important than ever to emphasize to employers the importance of completing and maintaining I-9 forms properly. The following basic compliance measures are therefore recommended:

• Establish a company protocol for dealing with Social Security Administration (SSA) “no-match” discrepancies;
• Make sure the I-9 process does not violate discrimination and civil rights regulations;
• Ensure company’s compliance with I-9 Forms, arranging “mock-audits” by an external firm or a trained employee not otherwise involved in the I-9 process semi-annually;
• Develop an internal training program to address proper completion of the I-9 form as well as form maintenance.

Please visit the following useful links to learn more about employment verification and I-9 compliance.

Our office can assist you to conduct a “mock audit” in person at the company location or at our office based on copies of your I-9 forms. Reviewing I-9 forms provides you an opportunity to correct existing technical violations, train company representatives responsible for I-9 completion and tracking, and to help develop compliance procedures and company policies.

Please click on the following useful links to learn more about I-9 compliance and employer sanctions.

• About Form I-9 Employment Eligibility Verification
• Employment Authorization Documents
• Office or Special Counsel for Immigration Related Unfair Employment Practices
• Employer Sanctions

 Recent Reported  ICE Raids, USCIS Fact Sheets and Government Regulations

• Walker & Ungo Summary  of ICE No-Match Regulation (August 16, 2007)
• ICE Final Rule Regarding “No-Match” Letters (August 15, 2007)
• USCIS E-Verify Fact Sheet (August 10, 2007)
• DHS Fact Sheet Regarding Worksite Enforcement (August 9, 2007)
• ICE agents executed a criminal search warrant, civil warrants, and conducted consent searches at nine business locations in the Baltimore area (March 29, 2007)