Immigration and Your Company: Continuing the Mantra of Compliance

Immigration reform is a story that has no conclusion. Another chapter is always being written. So, while reform is up in the air, and border crossings dominate the news, employers around the country must continue to operate under existing laws. Experts say it is more important than ever to be vigilant about compliance.

One of the key tasks companies must complete is verification of an employee’s eligibility to work. Form I-9 is at the heart of the verification. It also is at the heart of most non-compliance, the experts say. Proper instruction and training of human resources personnel can alleviate a great deal of headaches, and possibly some penalties and fines.

Allen E. Kaye of the Law Offices of Allen E. Kaye offered some guidance. When a new hire comes on board, the employer must give the prospective employee all nine pages of the document. It includes instructions, the forms to be completed by the worker and the company, and a list of acceptable documents for establishing the authority to work. Some rules for employers to keep in mind:

• Do not just give the employee the portion he/she must fill out. Give all nine pages.
• Do not dictate which documents a worker presents. The worker can choose one item from column A or items from columns B and C.
• Complete the employer portion within three days of hiring.
• Make a copy of the documents for all employees, and keep them with the form. If you do it for one worker, you must do it for all workers.
• In the United States, the English version must be used.
• Keep a copy of the work authorization document until it expires; then get it re-verified.

Kaye said a third party can act on an employer’s behalf when completing the form, but the employer is ultimately responsible. Additionally, the person filling out Section 2 must be the person who reviews the identification document presented by the worker.

Common mistakes include requiring the employee to put an email address and phone number on the form. These are optional, Kaye said. Employers often try to specify which document they want to see to prove eligibility. This is a no-no. So is accepting a faxed copy of the form. The employer must retain the original form with the original handwritten signatures, he said.

If an applicant’s name on the identification documents is spelled differently, don’t be surprised. Transcribing some foreign names is unscientific, she said. Rahul Manchanda of Rahul Manchanda Law Offices & Associates suggested advising the employee to seek an easily obtained court order to change the spelling of the name, then use that to obtain a new identification document.

For additional information, visit I-9 Central at www.uscis.gov or call 888-464-4218. There also is a 60-page Handbook for Employers.

Compliance: Why It Matters

Elaine Martin, former managing director of Paragon GeoImmigration, said President Barack Obama has stepped up enforcement. She said at home and abroad, enforcement can be viewed as a way of raising revenue without raising taxes.

In 2012, U.S. Immigration and Customs Enforcement (ICE), made 520 criminal arrests related to work-site enforcement. These were arrests of HR employees, supervisors and company managers accused of knowingly hiring illegal aliens, committing aggravated identity theft and even Social Security fraud. In 2004, ICE issued 4 notices of inspection. In 2012, it was 3,004.

“In 2012, there were 495 final orders and $12 million in fines,” Martin said. “This is very, very significant.”

Further, 376 companies were debarred. They can no longer work on government contracts, which is a very severe penalty, she said.

Financial penalties include:

• First offense—$375 to $3,200 for each unauthorized employee
• Second offense—up to $6,500 for each unauthorized employee
• Third offense —up to $13,000 for each unauthorized employee

In cases where ICE can show a pattern of abuse, there are criminal penalties, including up to six months in prison.

This is in addition to negative publicity, Martin said. This is an aspect of non-compliance that you cannot put a value on. She noted that countries and foreign companies that view honor and reputation above all else have a hard time getting over such shameful conduct.

Evidence of how critical the paperwork is can be seen in the 2010 case of Abercrombie & Fitch, she said. An audit uncovered numerous technology-related deficiencies in the company’s I-9 verification system. No instances of the knowing hire of unauthorized aliens were discovered, but the paperwork violations cost the retailer more than $1 million in fines.

“There are nearly always some discrepancies, some uncertainty or some technical failure,” Martin said, “because it is very difficult, especially in a large corporation, to have all of your I-9s absolutely perfect.”

Audits can be random, but often they are the result of a complaint from a disgruntled employee, she said.

What Can Companies Do?

Be sure to use the latest version of the I-9 form. Conduct self audits, or hire an immigration-savvy law firm to do it for you. For large companies, take a sample 10 percent of forms to determine if there might be a problem.

The ICE official conducting the audit needs to see that you have really tried to comply. This can mean demonstrating that your HR personnel have been trained, and new HR staff are likewise trained. It also is important to have a corporate policy.

She also advised purging I-9s when you are legally able. “You don’t want to be fined for a paperwork violation for a person who left the company 10 years ago and who shouldn’t even have been in that file.”

Martin warned about other regulatory pitfalls. A foreign worker is not defined by where he or she is being paid; it matters what the employee is doing. If a foreign worker comes to the United States to attend a business meeting, training or exhibition, that is a visitor, she said. If he is working, he is working. Make clear that your company will not support facilitating any payment to any foreign official in order to toe the line under the Foreign Corrupt Practices Act and make this part of your company-wide culture, she said.

Changes On the Horizon

With immigration reform in Congress essentially dead for the moment, rumors are circulating that President Obama may use an executive order to make some administrative fixes. But what might those changes be, and when? Kaye said the timing will depend on what will most help the Democrats prior to the election. He issued a short wish list:

• Extend to parents the deferred action for childhood arrivals—DACA. One of President Obama’s previous changes was to postpone immigration action on people who came to the United States as children before age 16 and were not 31 by June 2012, and who met residency and education requirements.
• Allow spouses of high-skilled (H1) visa holders to get working permits. The president has already said he would do this, but delays continue to exist in the process.
• Eliminate the backlog for obtaining an immigrant visa by not counting an applicant’s spouse and children.

“If you didn’t count them, the lines would go incredibly short,” Kaye said. “It’s a tiny thing that would have major, major implications, especially for immigrants from countries with huge backlogs.”

Manchanda said immigration revisions would be welcome. “The reason that changes are coming down the pike is that immigration law  is like Swiss cheese. It have been so pumped full of holes with loopholes and exceptions thanks to great immigration litigators around the country.”

The views and opinions expressed in this article are those of the individual sources referenced and do not reflect the views, opinions or policies of the organizations the sources represent.