Maryland Bar Bulletin
Publications : Bar Bulletin : August 2009

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On July 1, 2009, U.S. Immigration and Customs Enforcement (ICE) issued notices to inspect the I-9 records of 652 businesses nationwide. This marks a bold crack-down on employers that includes increased criminal prosecutions and steep fines for hiring unauthorized workers and failing to properly complete and maintain I-9 employment verification records. Until Congress passes immigration reform giving employers in need of workers the ability to lawfully hire employees in need of work, employment authorization requirements will continue to vex employers. Meanwhile, to avoid enforcement liability, employers should take steps to proactively strengthen their I-9 compliance programs.

The I-9 Regime

Under the Immigration Reform and Control Act of 1986 (IRCA), employers must examine documentation establishing the identity and work authorization of new employees and record identifying information on Form I-9. Employers face civil and, in some cases, criminal liability for employing a worker if the employer has actual or constructive knowledge that the worker is unauthorized. Employers also face liability for failing to properly complete and maintain I-9 Forms.

The seeming simplicity of I-9 verification is deceiving because of the many nuanced types of work authorization and regular changes in the form of immigration documents. Moreover, while employers are not “document police”, widespread document fraud can challenge an employer to either accept a document that may be fraudulent or reject a worker that may be work-authorized.

AS PART OF ITS "GET TOUGH"
enforcement initiative, ICE is urging employers to participate in "E-Verify", an online program that allows comparison of an applicant's I-9 information against government databases.

The Anti-Discrimination Provisions

Zealous employers must take care in I-9 verification to avoid liability for intentional discrimination against “protected individuals” (U.S. citizens, green card holders and certain others) on the basis of national origin or citizenship status. For instance, employers may not request particular documents, such as a “green card”; rather, they must accept any documentation listed on the I-9 Form, provided it appears genuine.

E-Verify and the “FAR” Rule for Government Contractors

As part of its “get tough” enforcement initiative, ICE is urging employers to participate in “E-Verify”, an online program that allows comparison of an applicant’s I-9 information against government databases. The Department of Homeland Security (DHS) has announced its plan to implement shortly an amendment to the Federal Acquisition Regulation (FAR) requiring certain federal contractors and subcontractors, including many who receive stimulus funds, to participate in E-Verify. The FAR rule has been in litigation and held back four times by DHS, and a court ruling is expected soon.

Regardless of the outcome of the FAR litigation, the E-Verify program has broad government-wide support and probably is here to stay. At least 12 states have enacted their own E-Verify or related rules, which creates potentially conflicting obligations on employers and pressures Congress to enact a uniform federal law. This underscores the importance of a solid corporate I-9 compliance program.

Ten Steps to Build an I-9 Compliance Program and Avoid Liability

Employers should take the following steps to build a strong I-9 compliance program:

1. Create a Corporate Culture of I-9 Compliance. Develop a written I-9 compliance policy that top management adopts and which is centrally controlled.

2. Conduct I-9 Training. I-9 verification is rife with hidden pitfalls. Corporate staff with I-9 responsibility should receive expert training.

3. Conduct Internal Audits. Conduct regular “ICE-like” internal I-9 audits with the assistance of an expert. These will reveal common mistakes, provide an opportunity to correct errors and create a record of good-faith. Make I-9 corrections conspicuously, and never backdate.

4. Develop Storage and Retention Policies. Develop I-9 storage policies that allow prompt production in the event of an audit and retention policies that conform to law. Create tickler systems for reverification and lawful purging of I-9s. Consider electronic I-9 systems, which build in safeguards for proper completion.

5. Prepare for Government Inspection. Develop and train staff in an “ICE site-visit plan” and correct I-9 forms before ICE knocks at the door.

6. To E-Verify or Not? Assess the risks and benefits of E-Verify participation, including whether it is required by law, its hard and soft costs and the risk that ICE will use E-Verify data for enforcement.

7. Use Proper I-9 Form. Use the proper version of the I-9 Form, which currently is dated “02/02/2009”. Only accept the documents listed on the current I-9 Form.

8. Avoid Discrimination. Treat everyone alike in the I-9 process. Avoid pre-hiring employment verification, which could lead to a discrimination charge. Accept any allowable document(s) provided they appear genuine and to relate to the employee. Don’t “over police.” However, there are times when employment is authorized even though the documents do not fit neatly into the I-9 regime. If in doubt, consult counsel.

9. Do Not Require U.S. Citizenship. This only is proper if clearly required by law or contract.

10. Develop Policies for Contractor’s Compliance. Avoid becoming a “joint employer” of a contractor’s staff and obtain assurances of I-9 compliance and indemnification for liability.

Conclusion

ICE’s blitz on unauthorized employment is targeted squarely at employers. A proactive, strong I-9 compliance program is necessary to keep employers out of ICE’s cross-hairs.

Denise C. Hammond is managing partner of Hammond Immigration Law, P.C., in Rockville, Maryland, and Washington, D.C.



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Publications : Bar Bulletin: July 2009

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