What the Law Requires:
Applicable Law and Federal Agencies Involved in its Enforcement.

Below is a summary of the law applicable to the enforcement of laws related to the employment of immigrants, and the federal agencies charged with its enforcement.

In 1986, Congress reformed U.S.immigration laws. The employer sanctions provisions, found in section 274A of the Immigration and Nationality Act (INA), were added by the Immigration Reform and Control Act of 1986 (IRCA). These provisions further changed with the passage of the Immigration Act of 1990 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996.

The Homeland Security Act of 2002 created an executive department combining numerous federal agencies with a mission dedicated to homeland security. On March 1, 2003, the authorities of the former Immigration and Naturalization Service (INS) were transferred to three new agencies in the U.S.Department of Homeland Security (DHS): U.S.Citizenship and Immigration Services (USCIS), U.S.Customs and Border Protection (CBP), and U.S.Immigration and Customs Enforcement (ICE).

The two DHS immigration components most involved with the matters discussed in this Handbook are USCIS and ICE.

• USCIS is responsible for most documentation of alien employment authorization, for Form I-9 itself, and for the E-Verify employment eligibility verification program.
• ICE is responsible for enforcement of the penalty provisions of section 274A of the INA, and for other immigration enforcement within the United States.

Our firm can help you design a Corporate Compliance Program that meets these federal immigration law requirements and protects you from serious fines or other penalties for non-compliance.

What the Law Requires: the I9 Form.

The law requires all employers to fill out an I-9 form, available at www.uscis.gov, for all employees hired since November 6, 1986, regardless of their immigration status. The purpose of the I-9 form is to ensure the identity and employment authorization of workers.

The form consists of two portions. In the first portion, the employee attests, under penalty of perjury, that he or she is a citizen, lawful permanent resident, or alien authorized to work temporarily. Section 1 must be completed at the time of hire. In the second portion, employers are required to record that they have examined original documents from a specified list verifying the employee’s identity and eligibility to work. Employers must accept the documents if they appear “reasonably genuine” and relate to the person presenting the documents.

Section 2 of the I-9 must be completed within three days of starting work. The I-9 itself is not submitted to ICE; instead, the employer must keep the form on file for three years from the date of hire or one year after the last day of work, whichever is later. The I-9 may be stored in its original form, microfilm, microfiche, or electronically. The only exceptions to an employer’s I-9 obligation are independent contractors and sporadic domestic workers. Employers are not required to complete an I-9 for independent contractors, but remain liable if they know that contractors are using unauthorized aliens to perform labor or services.

Knowledge acquired by the employer after the initial hire may trigger an obligation to re-verify the I-9 documents. The obligation to re-verify I-9 documentation is triggered when (1) the temporary employment authorization expires; (2) the employer receives information from a government agency or through other sources that an employee may not be authorized to work; or (3) the employee presents a receipt for the application of an acceptable I-9 document. 22 Expiration of List B identity documents and the permanent resident card would not warrant re-verification, as they may be accepted at hire even if they are expired.[23]

Re-verification procedures should mirror initial I-9 procedures. The employee may choose which documents to present. An employer should not specify which documents, nor should it specify that the document provided must be a U.S. Citizenship and Immigration Services (USCIS) document. If any changes are made to the I-9, the employee should initial and date any updated information. Instead of re-verifying through an entirely new form, and employer may use section 3 of the I-9 form. Section 3 may only be used if the original I-9 form was executed within three years of the date of rehire. In all instances an employer may use a new form to re-verify as well.

Our firm can help you design and implement a system for ensuring that you comply with the I-9 rules, including conducting audits of your I-9 records and /or training and assisting your human resource personnel in the design of such procedures.

What the Law Requires:
No Knowing Employment of Undocumented Workers.

The law prohibits any person or entity from knowingly hiring or continuing to employ an unauthorized worker.

“Knowledge may be either actual or constructive.” Constructive knowledge is defined as knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition.

A non-exhaustive list of conditions that would establish a rebuttable presumption of constructive knowledge include employers who: (1) fail to complete or improperly complete the I-9; (2) have information available to the company that would indicate that the alien is not authorized to work; or (3) act with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into the workforce

Initially, courts interpreted the doctrine of constructive knowledge fairly narrowly. Constructive knowledge was specifically found where employers ignored notices from INS stating that certain employees were not authorized to work. More recent cases have broadened the interpretation of constructive knowledge to include instances where an employer is in possession of an I-9, which indicated the alien was out of status, but failed to re-verify.

Constructive knowledge arising from “reckless and wanton disregard” may have originally been intended for employers who accept employees through recruiters, but this section has been interpreted to include employers who recklessly entrust incompetent employees with hiring or I-9 compliance. Because whoever completes section 2 of the I-9 does so on behalf of the employer, any knowledge acquired by the agent may be imputed to the employer, regardless of that agent’s actual authority to hire.

Our firm can assist make sure you are protected from fines or criminal penalties for knowing employment of undocumented workers. We can design a corporate compliance program that will provide you with a good faith defense from such fines or penalties.

What the Law Requires: Good Faith Defenses

If an employer has employed an undocumented worker, good faith compliance with I-9 procedures provides a “narrow but complete defense.” 38 A person or entity that has complied in good faith with the requirements of employment verification has established an affirmative defense against unlawful hiring. 39 Completion of the I-9 form raises a rebuttable presumption that the employer has not knowingly hired an unauthorized alien, but the government may rebut the presumption by offering proof that the documents did not appear genuine on their face, the verification was pretextual, or that the employer colluded with the employee in falsifying the documents. 40 The good faith defense does not apply for employers who fail to make corrections on the I-9 after being given 10 days notice or employers who have a pattern and practice of hiring undocumented workers. 41 Therefore, setting proper policies and training employees who administer I-9 documents is critical to demonstrating good faith compliance.

Our firm can assist make sure you are protected from fines or criminal penalties for knowing employment of undocumented workers. We can design a corporate compliance program that will provide you with a good faith defense from such fines or penalties.

What the Law Requires: No Discrimination.

In ensuring employment authorization, employers with greater than three employees may not discriminate on the basis of national origin or citizenship status except against unauthorized aliens. The anti-discrimination provisions act to limit overzealous employers from excluding lawful workers who appear foreign. Knowledge that an employee is unauthorized may not be inferred from an employee’s foreign appearance or accent. Discriminatory practices include copying identity documents for only certain employees, or scrutinizing documents more carefully for workers who look foreign. Pre-screening prospective employees through the I-9 process is also considered a discriminatory practice.

On September 30, 1996, the provisions regarding document abuse were amended to require the intent to discriminate. Document abuse involves the refusal of documents or the request for more or different documents. Employers also should avoid requests for specific documents, such as the applicant’s Social Security card. Any requests for an applicant’s Social Security card should be made separately from the I-9 process. Where employers are found to have requested more or different documents than an employee chooses to present from List A or List B and C, they may be fined $100–$1,000 for each individual determined to have suffered such document abuse. Prior to the 1996 amendment, document abuse was treated as a strict liability offense. Since the amendment, employers who have rejected documents due to their lack of awareness of the receipt rule were not found to have intentionally discriminated. Lastly, the date of employment authorization expiration should not be considered in the hiring process as that could be deemed to discriminate on the basis of immigration status.

Because the law also prohibits discrimination in employment practices on the basis of citizenship or immigration status, employers must be aware of potential pitfalls in pre-hiring inquiries. The Office of Special Counsel maintains that employers may inquire in an interview or employment application whether an applicant is legally authorized to work in the United States. Depending on the response of the applicant, the employer may not inquire any further. If the applicant responds affirmatively, the interviewer should not inquire further into the basis of the employment authorization. If the applicant responds in the negative, the employer can inquire into the current immigration status of that individual. Because unauthorized workers are not protected from discrimination under the law, such pre-hiring questions pose minimal risk. If the applicant lacks employment authorization, the employer is allowed to ask whether the applicant now or in the future requires sponsorship for employment visa status, such as H-1B. Pre-employment questions should focus on employment authorization rather than specific status as a citizen or permanent resident, as those questions could be later interpreted to have been the basis for discriminating on the basis of citizenship.

Claims of unlawful discrimination are handled through the Office of Special Counsel for Unfair Employment-Related Discrimination for employers with four to 14 workers or Equal Employment Opportunity Commission (EEOC) for employers with 15 or more workers. Employers may be ordered to pay civil monetary penalties of $275–$2,200 per individual discriminated against for the first offense, $2,200–$5,500 per individual discriminated against for the second offense, and $3,300–$11,000 per individual for subsequent offenses. The variation in the fine imposed will be partly based on whether economic damage was done to the employee. It also should be noted that fines are discretionary, not mandatory.

If a claim of an employee or prospective employee has been discriminated against, charges must be filed with OSC within 180 days of the alleged discrimination. After receipt of the discrimination charge, the OSC will inform the employer of the charges within 10 days and begin an investigation. If OSC has not filed a complaint with an administrative law judge 120 days after receiving a charge of discrimination, the charging party (the employee) may file a complaint with an administrative law judge within 90 days.

Our firm can design a corporate compliance policy and manual that will protect you from charges that you have violated the non-discrimination provisions of the immigration law.

Obama Administration Promises Sanctions Against Employers of Undocumented Immigrants

The federal government announced a new policy of more aggressively pursuing prosecution of employers of illegal immigrants, changing the focus and methods of the Bush administration.

Starting in 2006, U.S. Immigration and Customs Enforcement (ICE) initiated stepped up enforcement against employers of the undocumented. ICE began aggressively bringing criminal and civil cases against employers and even seizing corporate assets.

Last year, 863 employers of illegal workers were arrested on criminal charges and over $30 million in fines were imposed. Federal prosecutors began to charge employers with money laundering, harboring of illegal aliens, and violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). Courts have approved the use of federal laws creatively to prosecute those who hire illegal workers. One appeals court recently upheld a conviction of an employer for “harboring” an illegal alien if the employer had “knowledge or reckless disregard of the alien’s unlawful status.” Employers are now routinely being prosecuted under another criminal statute which prohibits the “practice of hiring or continuing the employment of an unauthorized alien.”

President Obama repeatedly stated in his campaign that he would be even tougher against those who hire undocumented immigrants. The first changes in Department of Homeland Security (DHS) policy are already evident in his first 100 days in office.

In February, Secretary of Homeland Security Janet Napolitano reversed past ICE policy in the handling of a raid on an industrial employer in Washington state. When she learned of the raid after the fact, Napolitano released the arrested illegal immigrants, gave them temporary status and work permission, and enlisted them to testify against the company that employed them.

This represents a new tactic in the handling of such raids by the federal government. During the 8 years of the Bush Administration, undocumented workers were almost always arrested in raids and subsequently deported, some after being prosecuted for identity theft for using others’ social security numbers. It was often difficult to prosecute the employers without the workers around to testify.

In the new guidelines just announced, the Department calls for more severe fines and criminal prosecution against employers found to violate these laws. The directives instruct ICE field offices and agents to focus on employers and supervisors. Moreover, they suggest the approach used in Washington may be employed more often: use the workers themselves to help prosecute their bosses.

“Enforcement efforts focused on employers better target the root causes of illegal immigration” according to the new guidelines. “ICE must prioritize the criminal prosecution of actual employers who knowingly hire illegal workers because such employers are not sufficiently punished or deterred by the arrest of their illegal work force.”

Napolitano warned in an interview last month that the agency would increase their auditing of employers internal records including the I-9 forms that are supposed to be filled out when hiring a new employee verifying that the person has the right to work. She even suggested that ICE would use illegal workers as undercover informers to implicate their bosses. “What I want to do is deter more employers from intentionally and knowingly hiring illegal workers,” she declared.

Employers should heed the clear message sent by federal authorities: they are going after those who hire immigrants lacking proper documentation of their right to work. Especially in these tough economic times, one should expect this type of aggressive workplace enforcement of immigration laws to increase with time.

Our firm can help you design a Corporate Compliance Program that meets these federal immigration law requirements and protects you from serious fines or other penalties for non-compliance.

What is the Current Status of the No-Match Regulations?

On August 15, 2007, the Department of Homeland Security (DHS) issued a controversial final regulation on how employers should respond to a Social Security no-match letter.

The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) along with the American Civil Liberties Union (ACLU) has challenged the new regulation in the U.S. District Court for the Northern District of California on the basis that rulemaking procedures were not correctly followed. On October 10, 2007, the court temporarily enjoined the implementation of the no-match regulation. The court then granted DHS’s request for a Stay until March 24, 2008, pending a new rulemaking process to address the court’s concerns.

In the summer of 2009, the Obama Administration announced that it would not enforce the No Match Regulations.

Therefore, at this point, the Social Security no-match regulation is not in effect, although it may be prudent to advise employers to follow the final regulation in the interim.

Prior to the final regulation, SSA and legacy INS had indicated that a no-match letter alone was not a reliable indicator of employment authorization. Under the final regulations, employers must: (1) attempt to resolve the discrepancy within 30 days; and (2) re-verify employment authorization through the I-9 procedure within 93 days. If the employer completes a new I-9 Form for the employee, it should use the same procedures as if the employee were newly hired, except that documents presented for both identity and employment must: (1) not contain the SSN although alien number may be used for employment authorization; and (2) must contain a photograph.

There has been some disagreement as to whether this expands an employer’s existing obligations. The DHS view of current obligations finds support in Mester Mfg. Co. v. INS, a Ninth Circuit case where an employer was found to have constructive knowledge after receiving notice that three aliens were suspected of green card fraud, but failed to follow up on that information. In Mester, the U.S. Ninth Circuit Court of Appeals held that the employer must terminate an unauthorized employee within a “reasonable” time period. Determining a reasonable time period will include factors such as “the certainty of the information provided,” and the steps taken by the employer to confirm it. Ultimately, a two-week delay in firing an undocumented worker after an employer received a notice of intent to fine from INS was found to constitute continued employment of an undocumented worker.

Our firm can assist make sure you are protected from fines or criminal penalties for knowing employment of undocumented workers. We can design a corporate compliance program that will provide you with a good faith defense from such fines or penalties.

AgJobs Bill Would Be a Relief to Farmers and Their Workers.

A law proposed in the U.S. Congress last week would be a godsend for local farmers who rely on immigrant labor and those immigrants who do the work. With the new Presidential administration and changed composition in Congress, this important legislation may have a chance at passage.

The proposed law, the Agricultural Job Opportunities and Benefits Act (“AgJobs”) would improve the temporary labor program (known as the H2 visa) that many growers use to bring in foreign labor. Significantly, it would also allow current farmworkers with two years presence here to legalize their status and ultimately get a green card. The bill was introduced by California Senator Diane Feinstein and other Senators and representatives from both parties, primarily from states with large agricultural production. The bill is expected to have support from the Obama Administration.

Legalization of current agricultural workers.

Under this legislation, undocumented agricultural workers could legalize their status on certain conditions. Workers who can prove they worked in American agriculture for at least 150 work days over the previous two years before December 31, 2008 could apply for a new “blue card” or temporary legal immigration status. The blue card would give the person temporary legal status and a work permit.

The bill also provides a path to citizenship for these agricultural workers. If they continued to work for several more years in an agricultural capacity in the United States, they could qualify for permanent residence or a “green card”. (Specifically, to qualify they would have to work an additional three years, working at least 150 days per year, or an additional five years, working at least 100 days per year.) In order to obtain permanent residence, workers would have to pay a fine of $500, pay any back taxes owed, and prove they have not committed any serious crimes.

Persons holding the green card can generally apply for U.S. citizenship after five years.

Improvement of the H2B visa Program.

The other component of the proposed bill is the improvement of the so-called H2 visa program, or the visa issued by the Citizen and Immigration Service for temporary or seasonal labor.

The H2 visa requires employers to prove a shortage of labor with each application, a process called labor certification process that is unrealistically long and complicated. The bill would shorten this process from several months to several days. The Department of Labor and CIS, which jointly administer this process, would be required to process all aspects of the H-2 visa program much more expeditiously .

This will allow growers to respond more quickly to seasonable labor needs by bringing in labor legally from Mexico and other countries.

Prospects for Passage.

The legislation has the support of both labor and industry. Its proponents have secured the endorsement of over 200 national and state agricultural organizations including the Western Growers, the U.S. Apple Association, the Western United Dairymen and the National Council of Agricultural Employers. It also has the support of labor organizations such as the Alliance for Worker Freedom and immigrant rights groups such as the American Rights Network. The New York Times endorsed the legislation in an editorial this week.

There are co-sponsors of the bill from both parties and the apparent support of the Obama administration. Unlike past years when similar legislation was introduced, the Democrats have a larger majority in the Senate and House, and may be able to defeat expected opposition from the anti-immigrant groups.

Farmers and other agricultural employers would benefit greatly from this legislation by providing help with the perennial problem of finding labor, and allowing growers to do so in a way complying with federal immigration law. Thousands of immigrant laborers would find a way to legalize their status and earn a path to green cards. The economy and government would benefit from additional tax base and consumer spending. Sounds like a win-win-win solution for the country.