Immigration Presents a Challenge in 2008 (12/14/07)

IMMIGRATION PRESENTS A CHALLENGE IN 2008

By Michael C. Saqui and Anthony P. Raimondo

Immigration compliance will continue to present a significant challenge for employers in 2008. As long as Congress fails to implement comprehensive reform and the political clamor for increased enforcement against employers continues, employers must have strategies in place to address this critical area of compliance.

Employer immigration strategies must contain three critical components: (1) I-9 protocols; (2) Social Security mismatch protocols; and (3) Raid/audit protocols.

I-9 Protocols:

A new I-9 form has been adopted, and the government has issued a new Guide for Employers (Form M-274) to provide guidance. All employers should have the new I-9, and use the guide for training purposes. Upper management must make I-9 compliance a priority so that the importance of the form is taken seriously throughout the company. Too often, I-9s are completed on “auto-pilot,” leading to errors that can create liability. Remember, the I-9 is your strongest defense against immigration charges.

1. Be certain you have completed I-9 forms for all new hires, including U.S. citizens. Make sure that all staff who process new hires are trained to properly complete the I-9 process.

2. Initial Verification: Documents must be originals that “reasonably appear genuine on their face.” If so, they must be accepted. Employers cannot specify which documents to produce. Do not use white-out – let your mistakes be seen. There is no reason to make ICE suspicious about what you might have blacked out.

3. Reverification: If an employer has information available to it indicating that an employee is not authorized to work, there is a duty to inquire further about the employee’s status, but the employer must be careful to avoid committing an unfair immigration related employment practice. If an employer receives a mismatch notice and the employee used a SS Card for List C on the I-9, it should reverify the I-9 without using the questionable SSN.

4. Complete the forms at the same point in the employment process for all employees - after you have made the decision to hire the person.

5. Periodically review your I-9 procedures, especially prior to the employment of seasonal workers. Conduct occasional “spot checks” to ensure the procedures are being followed and the forms are being filled out correctly. Make sure your system is programmed to “flag” I-9s 90 days before the expiration date of any work authorization document!

Social Security Mismatch Protocols

The so-called “safe harbor” regulation that was intended to force employers to fire employees with unresolved mismatches has been blocked by a federal court. However, a rewrite of the regulation to address the court’s concerns and an appeal of the ruling are in play, so the situation could change. However, currently the safe harbor rule is not in effect, and employers should not fire employees with mismatched Social Security numbers. However, employers cannot ignore mismatches and must follow up on information that is revealed in the process that could call immigration status into question.

1. Verify Your Records: Compare the employee’s SSN with your records. If your records do not match the W-4 form, then correct the W-4 form and report the correction to the Social Security Administration (SSA). Maintain copies of correspondence submitting corrected information to the SSA.

2. Notify the Employee of the Discrepancy: If checking your records shows you have been reporting the number as provided by the employee, then inform the employee that the SSA has notified you of the problem and that he or she must resolve it with the SSA. Tell the employee to report the correct information to you once it has been resolved with the SSA.

3. Confirm your Instructions in Writing: Write a letter directing the employee to resolve the issue with the SSA and asking the employee to provide updated information, and include it with the employee’s pay check. Retain a copy of the letter for your records. Maintain a list of the names of employees who received the written instructions. Remember, you must continue to pay payroll taxes for each employee, regardless of any mismatch.

If the employee returns with new information, correct your payroll records and send a letter to the SSA notifying the agency of the correction. If the employee returns with information that could indicate a lack of work authorization (i.e., a new name and/or SSN), then you may need to follow up further to avoid having “constructive knowledge” of the lack of authorization.

If the employee does not return with corrected information, do not automatically fire the employee or re-verify their authorization to work in the United States. However, this is a good opportunity to review your I-9 records and make sure they are in order. If you do not receive corrected information by the end of the tax year, send a letter to the employee asking him or her to provide updated information.

IF THE EMPLOYEE USED THE QUESTIONABLE SSN ON THE I-9, REVERIFY THE I-9 BUT DO NOT ACCEPT ANY DOCUMENT WITH THE QUESTIONABLE SSN UNLESS AND UNTIL THE MISMATCH IS RESOLVED.

4. Write a letter to the SSA: Write a letter to the SSA reporting the steps you took to resolve the SSN conflict for each affected employee, including those you no longer employ.

5. Establish Company Policy and Apply it Consistently: You must establish and implement a policy and procedure for responding to mismatch letters and to maintain records of your response to mismatch letters. However, you must be careful to apply the policy consistently to all employees in order to avoid claims of discrimination.

Raid and Audit Protocol

No employer wants to be on the wrong end of a visit from the government, but all employers must be prepared for the possibility by having a protocol in place, and by training management, supervisors, and employees on how to follow that protocol.

Employers must have a knowledgeable designated representative in place who is authorized to meet and talk with government agency personnel, and who knows when to contact the company’s attorneys and owner(s). All employees should be trained to direct government inquiries to this person.

1. No management employee should submit to an interview or provide documents to the ICE or other government agency without first conferring with your designated company representative. Do not allow ICE to talk to any management or supervisory employee without the Company’s attorney. Never give consent for ICE to speak with employees – if they try, stop them.

2. WHEN ICE SHOWS UP: Determine who the investigators are. Ask for a business card. Make sure they really are with ICE. If you are suspicious, call the agency to verify their identity. Contact your attorney immediately. Find out why the investigators are there. A raid does not require advance notice, but requires a search warrant (except within 25 miles of the U.S. Border, if the grower or his agent gives consent, if the government is in hot pursuit of an undocumented alien, or if the land is not being used for agricultural purposes, in which case no warrant is required). An audit does not require a warrant, but does require three days’ advance notice in writing.

3. Stay calm. Be polite no matter how you feel. Don’t forget you can ask for time to compile the records requested by ICE agents. Don’t allow documents to be removed from your property without making copies, and don’t turn over more documents than the law requires.

4. Know your rights. For example, no one is required to answer any questions. Make sure you consult with your attorney before giving agents access to employees or management, or before allowing any press contacts. Also, you have the right to continue operating your business during the ICE visit.

COUNSEL TO MANAGEMENT:

Until Congress acts to solve the immigration problem, employers will face the risk of enforcement. Employers should monitor this area closely, because there are a number of changes in play, including an ongoing appeal and rewrite of the Social Security Mismatch regulations. States are beginning to pass laws as well, including a law in Arizona that requires businesses to verify employment authorization documents, and bans employers who knowingly employ undocumented aliens from doing business in Arizona. Court challenges are in the works in many cases, but things can change very quickly.

The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. The reader should consult with Saqui & Raimondo at (831) 443-7100 in Salinas, or (916) 782-8555 in Sacramento for individual responses to questions or concerns regarding any given situation