The new Obama administration heralds change, but how much is the current immigration landscape going to change? The first big change is Obama's nomination of Arizona Governor Janet Napolitano to head the Department of Homeland Security (DHS), and therefore replace Department of Homeland Security (DHS) Secretary Michael Chertoff, who will be remembered for leading several record-breaking immigration raids. Under Chertoff, the number of worksite enforcement actions resulted in a new record of 5,173 administrative arrests of undocumented workers and 1,101 criminal arrests in 2008. Immigration and Customs Enforcement (ICE) also criminally charged 135 business owners, managers, supervisors and human resources employees.
So what can employers expect in 2009? For starters, the Employment Eligibility Verification Form (I-9) is revised yet again and E-Verify will be required for government contractors while the new administration will decide the fate of the Social Security No-Match Rule.
The I-9 Form ... Changed Yet Again
On December 12, 2008, U.S. Citizenship and Immigration Services (USCIS) announced an interim final rule to streamline the I-9 process (Employment Eligibility Verification form). The following is a short summary of the changes to the I-9:
- Expired documents are no longer acceptable
- List A-Added passports for citizens of the Federated States of Micronesia and the Republic of the Marshall Islands if admitted to the United States under the Compacts of Free Association
- List A-Elimination of Form I-688, I-688A and I-688B
Section 1-references four attestation boxes an employee can choose from:
- U.S. Citizen
- U.S. Noncitizen
- National Lawful Permanent Resident
- Alien Authorized to Work
Employers need to keep an eye out for the new I-9 which should go into effect on February 2, 2009. Once the newly revised I-9 is published, it is recommended that only the new form be used as using an old form may result in a civil fine for a technical violation. Employers should destroy previous version of the I-9 and use only the newly issued one. Remember, the new one will have an extra box in Section 1, so it will be obvious which I-9 is new or old, and only unexpired documents will be accepted. Additionally, employers should also download the Employee Handbook M-274 which provides a step-by-step guide on completing the I-9. Employers can visit www.uscis.gov and click on "Forms."
E-Verify
Federal Government Contracts
President George W. Bush issued Executive Order 12989 which requires employers with federal government contracts to use E-Verify for verification of their employees' eligibility to legally work in the United States. This new rule went into effect on January 15, 2009, and affects both current and future government contracts. The first step employers in the construction industry must do is to determine whether or not any of their current or future contracts are tied to government issued contracts. The executive order dictates that both general contractors and subcontractors use E-Verify to check their workers.
Companies with current government contractors must confirm the employment eligibility status of both existing employees and new hires performing work on those contracts. Federal contracts solicited and awarded after the effective date will require contractors to sign up for E-Verify within thirty days of the contract award date. Additionally, subcontractors to federal contracts who provide over $3,000 in services or construction must also use E-Verify.
State Laws Requiring E-Verify
Several states now require the use of E-Verify. Arizona requires the use of E-Verify for all employers, while Indiana requires all state agencies to run their employees through E-Verify. Other states have introduced bills regarding the use of E-Verify. Companies should also check to see if they do business in a state which requires the use of E-Verify and enroll as required.
No E-Verify Requirement?
Requiring employers to use E-Verify is actually beneficial for the employer. As of December 2008, there were more than 92,000 employers currently using E-Verify. E-Verify is a free Internet-based system operated by DHS in partnership with the Social Security Administration (SSA). E-Verify allows employers to electronically verify the employment eligibility status of their new hires. The latest statistics by DHS showed that in Fiscal Year 2008 more than 6.6 million queries were run and approximately 96.1 percent of all cases (i.e., new hires) queried were instantly found to be eligible to work legally in the United States. Those individuals who did not receive instant work authorization have the ability to correct their DHS or SSA records in order to confirm their work eligibility.
Years ago, when E-Verify (formerly Basic Pilot) was initially rolled out, I was skeptical. In the past ten years, I represented several employers who were the victims of ICE raids, and those employers who were on E-Verify received better treatment and received fewer fines. Why? Simply because employers who use E-Verify properly achieve a solid good faith defense because employees who clear (or pass) E-Verify are deemed eligible to work in the United States, and therefore it is more difficult to subject those employers to criminal or civil fines. In short, E-Verify eliminates the "knowingly" hiring scenarios because employers depend on E-Verify's confirmation of an employee's eligibility to work in the United States, and this remains true even if the individuals who passed E-Verify are later found to be undocumented. However, use of E-Verify must be in good faith and not to circumvent the law.
The Flaw In E-Verify
Unfortunately, E-Verify does not detect a person's use of a stolen identity to gain employment and E-Verify only offers employers protections for new employees who pass E-Verify but does not offer protection for employees hired by the company prior to their implementation of E-Verify. An employer concerned about their current workforce's use of stolen identities to gain employment should take proactive steps to obtain a legal analysis of the state of their I-9s and the corresponding documentation provided by the employees. Additionally, it is recommended that all individuals with hiring and I-9 responsibilities receive training on the detection of an employee's use of fraudulent documents for employment purposes.
Social Security No-Match
One of the indicators that your workforce may have undocumented individuals using stolen or borrowed identities for employment is the employer's receipt of the SSA No-Match letter.
Employers have the responsibility to maintain and report wage earnings for their employees, earnings which will provide employees access to certain Social Security benefits. However, due to employer or employee errors in filing paperwork, sometimes the information reported to SSA does not match SSA records. When this happens, SSA normally generates an annual No-Match letter to employees and their employers. This is where immigration liability arises for the employer, particularly when the No-Match letter is ignored.
The new administration will now decide the fate of the No-Match Rule following a decision by U.S. District Judge Charles Breyer to set a February 24, 2009, hearing for DHS' request in lifting the injunction. Judge Breyer appears to postpone the hearing date to provide the Obama administration an opportunity to examine the DHS No-Match Rule. However, employers should develop their own internal plan for dealing with SSA No-Match letter as ICE will continue to use the receipt of No-Match letter as evidence of "constructive" knowledge on part of owners/managers.
An employer has "constructive" knowledge that an employee is not legally authorized to work if a reasonable person would infer it from the facts presented. Instances of "constructive" knowledge include an improperly completed I-9 form, including supporting documentation or the employer learned from individuals, media reports or any source of information available to the employer, that his employee lacks work authorization. Again, "constructive" knowledge can be inferred from the receipt of a No-Match letter.
The rule proposed by DHS threatens employers with civil and criminal liability if they fail to resolve the discrepancies between the employee's Social Security number and information in the SSA's records within a specific time frame. The DHS No-Match Rule would require SSA to include in the annual No-Match letter information notifying employers of their obligations to resolve discrepancies within thirty to ninety-three days from receipt of the No-Match letter or face liability. The DHS Rule specifically states that "constructive" knowledge will be inferred if the employer does not take action within the timeframe specified.
Under the DHS Rule, employers would be provided a "safe harbor" for taking reasonable steps to address the No-Match Rule. The rule requires employers to resolve the discrepancy within thirty days by checking company records or request that the employee through written notice provide the correct documentation or update their records with SSA. If after ninety days, the No-Match is not resolved, the employer must reverify (i.e., complete a new I-9) for the employee in question. However, the employee cannot present the document that is the subject of a No-Match letter. Of course, if the employee cannot provide other documentation in support of the new I-9, then the employer is expected to terminate the individual.
Immigration Reform
Keep an eye out for immigration reform and promises made by unions to your workforce in exchange for signing union cards. With immigration reform looming on the horizon, expect third parties such as union organizers to enter your workforce and make false promises in exchange for voting a union into the workplace. First, if an employee was hired through the use of a stolen identity and Congress passes some type of immigration reform, that employee will want to "fix" his legal status. Given the opportunity to finally become a legal resident, the employee will support the party (i.e. the union) which will make his dream come true. Therefore, start educating your employees on the pros and cons of having a union bargain collectively for employees.
On the other hand, employers should also tread carefully if an employee asks questions about becoming a legal resident. Your employees should be legally authorized to work in the United States. Questions which imply lack of work authorization will impart "constructive" knowledge on the employer. So what is an employer to do? Seek legal advice from an attorney versed in immigration law.
New Year Resolution-Change Your Immigration Compliance Policy
A new year means new resolutions. As a responsible employer you should resolve to update your immigration policy and adopt E-Verify or institute your own No-Match Rule protocol. It would also be wise to provide your employees with hiring authority with updated training on the amended I-9. Everyone with hiring authority should be on the same page. Also, seek legal counsel to analyze your company's vulnerability to a possible worksite enforcement action by ICE.
Construction Business Owner, February 2009
