ARTICLE I

PURPOSE AND AUTHORITY

This Memorandum of Understanding (MOU) sets forth the points of agreement between the Social Security Administration (SSA), the Department of Homeland Security (DHS) and ____________________ (Employer) regarding the Employer's participation in E-Verify. E-Verify is a pilot program in which the employment eligibility of all newly hired employees will be confirmed after the Employment Eligibility Verification Form (Form I-9) has been completed.

Authority for the E-Verify is found in Title IV, Subtitle A, of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009, as amended (8 U.S.C. § 1324a note).

ARTICLE II

FUNCTIONS TO BE PERFORMED

A. RESPONSIBILITIES OF THE SSA

1. Upon completion of the Form I-9 by the employee and the Employer, and provided the Employer complies with the requirements of this MOU, SSA agrees to provide the Employer with available information that allows the Employer to confirm the accuracy of Social Security Numbers provided by all newly hired employees and the employment authorization of U.S. citizens.

2. The SSA agrees to provide to the Employer appropriate assistance with operational problems that may arise during the Employer's participation in E-Verify. The SSA agrees to provide the Employer with names, titles, addresses, and telephone numbers of SSA representatives to be contacted during E-Verify.

3. The SSA agrees to safeguard the information provided by the Employer through the E-Verify procedures, and to limit access to such information, as is appropriate by law, to individuals responsible for the verification of Social Security Numbers and for evaluation of the E-Verify or such other persons or entities who may be authorized by the SSA as governed by the Privacy Act (5 U.S.C. § 552a), the Social Security Act (42 U.S.C. 1306(a)), and SSA regulations (20 CFR Part 401).

4. SSA agrees to establish a means of automated verification that is designed (in conjunction with the Department of Homeland Security's automated system if necessary) to provide confirmation or tentative nonconfirmation of US citizens’ employment eligibility and accuracy of SSA records for both citizens and aliens within 3 Federal Government work days of the initial inquiry.

5. SSA agrees to establish a means of secondary verification (including updating SSA records as may be necessary) for employees who contest SSA tentative nonconfirmations that is designed to provide final confirmation or nonconfirmation US citizens’ employment eligibility and accuracy of SSA records for both citizens and aliens within 10 Federal Government work days of the date of referral to SSA, unless SSA determines that more than 10 days may be necessary. In such cases, SSA will provide additional verification instructions.

B. RESPONSIBILITIES OF THE DEPARTMENT OF HOMELAND SECURITY

1. Upon completion of the Form I-9 by the employee and the Employer and completion of SSA verification procedures required prior to initiation of Department of Homeland Security verification procedures by the Employer, the Department of Homeland Security agrees to provide the Employer access to selected data from the Department of Homeland Security's database to enable the Employer to conduct:

• Automated verification checks on newly hired alien employees by electronic means, and

• Photographic verification checks (when available) on newly hired alien employees.

2. The Department of Homeland Security agrees to provide to the Employer appropriate assistance with operational problems that may arise during the Employer's participation in E-Verify. The Department of Homeland Security agrees to provide the Employer names, titles, addresses, and telephone numbers of Department of Homeland Security representatives to be contacted during E-Verify.

3. The Department of Homeland Security agrees to provide to the Employer a manual containing instructions on E-Verify policies, procedures and requirements for both SSA and Department of Homeland Security, including restrictions on use of E-Verify procedures (the E-Verify Manual). The Department of Homeland Security agrees to provide training materials on E-Verify.

4. The Department of Homeland Security agrees to provide to the Employer a notice, which indicates the Employer's participation in E-Verify. The Department of Homeland Security also agrees to provide to the Employer anti-discrimination notices issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), Civil Rights Division, and U.S. Department of Justice.

5. The Department of Homeland Security agrees to issue the Employer a user identification number(s) for hiring site and passwords that permits the Employer to verify information provided by alien employees with the Department of Homeland Security's database. The Department of Homeland Security agrees that upon notice from the Employer that a user identification number and/or password needs to be canceled and a new user identification number and/or password needs to be issued, Department of Homeland Security will do so within 3 days.

6. The Department of Homeland Security agrees to safeguard the information provided to the Department of Homeland Security by the Employer, and to limit access to such information to individuals responsible for the verification of alien employment eligibility and for evaluation of the E-Verify, or to such other persons or entities as may be authorized by applicable law. Information will be used only to verify the accuracy of Social Security Numbers and employment eligibility, to enforce the INA and federal criminal laws, and to ensure accurate wage reports to the SSA.

7. The Department of Homeland Security agrees to establish a means of automated verification that is designed (in conjunction with SSA verification procedures) to provide confirmation or tentative nonconfirmation of employees' employment eligibility within 3 Federal Government work days of the initial inquiry.

8. The Department of Homeland Security agrees to establish a means of secondary verification (including updating Department of Homeland Security records as may be necessary) for employees who contest Department of Homeland Security tentative nonconfirmations and photographic non-match tentative nonconfirmations that is designed to provide final confirmation or nonconfirmation of the employees' employment eligibility within 10 Federal Government work days of the date of referral to the Department of Homeland Security, unless DHS determines that more than 10 days may be necessary. In such cases, the Department of Homeland Security will provide additional verification instructions.

9. The Department of Homeland Security agrees that the Employer can designate and an Employer Representative(s) for its participation in E-verify at each hiring site. The Department of Homeland Security agrees that an Employer can designate the Employer hiring sites to participate in E-verify, or not, regardless of the, tax I.D. number, the state of operation or physical location of the Employer’s hiring site.

C. RESPONSIBILITIES OF THE EMPLOYER

1. The Employer agrees to display the notices supplied by the Department of Homeland Security in a prominent place that is clearly visible to prospective employees.

2. The Employer agrees to provide to the SSA and the Department of Homeland Security the names, titles, addresses, and telephone numbers of the Employer representatives to be contacted regarding E-Verify.

3. The Employer agrees to become familiar with and comply with the E-Verify Manual.

4. The Employer agrees that any Employer Representative who will perform employment verification queries will complete the E-Verify Tutorial before that individual initiates any queries.

5. The Employer agrees to comply with established Form I-9 procedures, with two exceptions:

• If an employee presents a "List B" identity document, the Employer agrees to only accept "List B" documents that contain a photograph. (List B documents identified in 8 C.F.R. § 274a.2(b)(1)(B)) can be presented during the Form I-9 process to establish identity).

• If an employee presents a DHS Form I-551 (Permanent Resident Card) or Form I-766 (Employment Authorization Document) to complete the Form I-9, the Employer agrees to make a photocopy of the document and to retain the photocopy with the employee’s Form I-9. The employer will use the photocopy to verify the photograph and to assist the Department with its review of photographic non-matches that are contested by employees. Note that employees retain the right to present any List A, or List B and List C, documentation to complete the Form I-9. DHS may in future designate other documents for the photographic screening tool.

6. The Employer understands that participation in E-Verify does not exempt the Employer from the responsibility to complete, retain, and make available for inspection Forms I-9 that relate to its employees, or from other requirements of applicable regulations or laws, except for the following modified requirements applicable by reason of the Employer's participation in E-Verify: (1) identity documents must have photographs, as described in paragraph 5 above; (2) a rebuttable presumption is established that the Employer has not violated section 274A(a)(1)(A) of the Immigration and Nationality Act (INA) with respect to the hiring of any individual if it obtains confirmation of the identity and employment eligibility of the individual in compliance with the terms and conditions of E-Verify ; (3) the Employer must notify the Department of Homeland Security if it continues to employ any employee after receiving a final nonconfirmation, and is subject to a civil money penalty between $500 and $1,000 for each failure to notify the Department of Homeland Security of continued employment following a final nonconfirmation; (4) the Employer is subject to a rebuttable presumption that it has knowingly employed an unauthorized alien in violation of section 274A(a)(1)(A) if the Employer continues

to employ any employee after receiving a final nonconfirmation; and (5) no person or entity participating in E-Verify is civilly or criminally liable under any law for any action taken in good faith on information provided through the confirmation system. The Department of Homeland Security reserves the right to conduct Form I-9 compliance inspections during the course of E-Verify, as well as to conduct any other enforcement activity authorized by law.

7. The Employer agrees to initiate E-Verify verification procedures within 3 Employer business days after each employee has been hired (but after both sections 1 and 2 of the Form I-9 have been completed), and to complete as many (but only as many) steps of the E-Verify process as are necessary according to the E-Verify Manual. The Employer is prohibited from initiating verification procedures before the employee has been hired and the Form I-9 completed. If the automated system to be queried is temporarily unavailable, the 3-day time period is extended until it is again operational in order to accommodate the Employer's attempting, in good faith, to make inquiries during the period of unavailability. In all cases, the Employer must use the SSA verification procedures first, and use the Department of Homeland Security verification procedures and photo screening tool only as directed by the SSA verification response.

8. The Employer agrees not to use E-Verify procedures for pre-employment screening of job applicants, support for any unlawful employment practice, or any other use not authorized by this MOU. The Employer will not verify selectively; it agrees to use the E-Verify procedures for all new hires as long as this MOU is in effect. The Employer agrees not to use E-Verify procedures for re-verification, or for employees hired before the date this MOU is in effect. The Employer understands that if the Employer uses E-Verify procedures for any purpose other than as authorized by this MOU, the Employer may be subject to appropriate legal action and the immediate termination of its access to SSA and Department of Homeland Security information pursuant to this MOU.

9. The Employer agrees to follow appropriate procedures (see Article IIIB below) regarding tentative non-confirmations, including notifying employees of the finding, providing written instructions to employees, allowing employees to contest the finding, and not taking adverse action against employees if they choose to contest the finding. Further, when employees contest a tentative non-confirmation based upon a photographic non-match, the Employer is required to take affirmative steps (see Article IIIB below) to contact the Department of Homeland Security with information necessary to resolve the challenge.

10. The Employer agrees not to take any adverse action against an employee based upon the employee's employment eligibility status while SSA or the Department of Homeland Security is processing the verification request unless the Employer obtains knowledge (as defined in 8 C.F.R. § 274a.1(l)) that the employee is not work authorized. The Employer understands that an initial inability of the SSA or Department of Homeland Security automated verification to verify work authorization, a tentative nonconfirmation, or the finding of a photo non-match, does not mean, and should not be interpreted as, an indication that the employee is not work authorized. In any of the cases listed above, the employee must be provided the opportunity to contest the finding, and if he or she does so, may not be terminated until secondary verification by SSA or the Department of Homeland Security has been completed to determine the final confirmation or non-confirmation. If the employee does not choose to contest the Employer’s initial finding, then the Employer can find the employee is not work authorized and take the appropriate action.

11. The Employer agrees to comply with section 274B of the INA by not discriminating unlawfully against any individual in hiring, firing, or recruitment practices because of his or her national origin or, in the case of a protected individual as defined in section 274B(a)(3) of the INA, because of his or her citizenship status. The Employer understands that such illegal practices can include discharging or refusing to hire eligible employees because of their foreign appearance or language, and that any violation of the unfair immigration-related employment practices provisions of the INA could subject the Employer to civil penalties pursuant to section 274B of the INA and the termination of its participation in the E-Verify. If the Employer has any questions relating to the anti-discrimination provision, it should contact OSC at 1-800-255-7688 or 1-800-237-2515 (TDD).

12. The Employer agrees to record the case verification number on the employee's Form I-9 or to print the screen containing the case verification number and attach it to the employee's Form I-9.

13. The Employer agrees that it will use the information it receives from the SSA or the Department of Homeland Security pursuant to E-Verify and this MOU only to confirm the employment eligibility of newly-hired employees after completion of the Form I-9. The Employer agrees that it will safeguard this information, and means of access to it (such as PINS and passwords) to ensure that it is not used for any other purpose and as necessary to protect its confidentiality, including ensuring that it is not disseminated to any person other than employees of the Employer who need it to perform the Employer's responsibilities under this MOU.

14. The Employer acknowledges that the information which it receives from SSA is governed by the Privacy Act (5 U.S.C. § 552a(i)(1) and (3)) and the Social Security Act (42 U.S.C. 1306(a)), and that any person who obtains this information under false pretenses or uses it for any purpose other than as provided for in this MOU may be subject to criminal penalties.

15. The Employer agrees to allow the Department of Homeland Security and SSA, or their authorized agents or designees, to make scheduled periodic visits to the Employer for the purpose of reviewing E-Verify -related records, i.e., Forms I-9, SSA Transaction Records, and Department of Homeland Security verification records, which were created during the Employer's participation in the E-Verify Program. In addition, for the purpose of evaluating the E-Verify, the Employer agrees to allow the Department of Homeland Security and SSA or their authorized agents or designees, to interview it regarding its experience with E-Verify, to interview employees hired during E-Verify concerning their experience with the pilot, and to make employment and E-Verify related records available to the Department of Homeland Security and the SSA, or their designated agents or designees.

ARTICLE III

REFERRAL OF INDIVIDUALS TO THE SSA AND THE DEPARTMENT OF HOMELAND SECURITY

A. REFERRAL TO THE SSA

1. If the Employer receives a tentative nonconfirmation issued by SSA, the Employer must print the tentative nonconfirmation notice as directed by the automated system and provide it to the employee so that the employee may determine whether he or she will contest the tentative nonconfirmation.

2. The Employer will refer employees to SSA field offices only as directed by the automated system based on a tentative nonconfirmation, and only after the Employer records the case verification number, reviews the input to detect any transaction errors, and determines that the employee contests the tentative nonconfirmation. The Employer will transmit the Social Security Number to SSA for verification again if this review indicates a need to do so. The Employer will determine whether the employee contests the tentative nonconfirmation as soon as possible after the Employer receives it.

3. If the employee contests an SSA tentative nonconfirmation, the Employer will provide the employee with a referral letter and instruct the employee to visit an SSA office to resolve the discrepancy within 8 Federal Government work days. The Employer will make a second inquiry to the SSA database using E-Verify procedures on the date that is 10 Federal Government work days after the date of the referral in order to obtain confirmation, or final nonconfirmation, unless otherwise instructed by SSA.

4. The Employer agrees not to ask the employee to obtain a printout from the Social Security Number database (the Numident) or other written verification of the Social Security Number from the SSA (other than the Social Security Number Card).

B. REFERRAL TO THE DEPARTMENT OF HOMELAND SECURITY

1. If the Employer receives a tentative nonconfirmation issued by the Department of Homeland Security, the Employer must print the tentative nonconfirmation notice as directed by the automated system and provide it to the employee so that the employee may determine whether he or she will contest the tentative nonconfirmation.

2. If the Employer finds a photographic non-match for an alien who provides a document for which the automated system has transmitted a photograph, the employer must print the photographic non-match tentative non-confirmation notice as directed by the automated system and provide it to the employee so that the employee may determine whether he or she will contest the finding.

3. The Employer agrees to refer individuals to the Department of Homeland Security only when the employee chooses to contest a tentative nonconfirmation received from the Department of Homeland Security automated verification process or when the Employer issues a tentative non-confirmation based upon a photo non-match. The Employer will determine whether the employee contests the tentative nonconfirmation as soon as possible after the Employer receives it.

4. If the employee contests a tentative nonconfirmation issued by the Department of Homeland Security, the Employer will provide the employee with a referral letter and instruct the employee to contact the Department through its toll-free hotline within 8 Federal Government work days.

5. If the employee contests a tentative nonconfirmation based upon a photographic non-match, the Employer will provide the employee with a referral letter to the Department of Homeland Security. The Department of Homeland Security will electronically transmit the result of the referral to the Employer within 10 Federal Government work days of the referral unless it determines that more than 10 days may be necessary.

6. The Employer agrees that if an employee contests a tentative non-confirmation based upon a photograph non-match, the Employer will send a copy of the employee’s Form I-551 or Form I-766 to DHS for review by:

• Scanning and uploading the document, or

• Sending a photocopy of the document by an express mail account (furnished and paid for by DHS).

7. The Employer understands that if it cannot determine whether there is a photo match/non-match, the Employer is required to forward the employee’s documentation to DHS by scanning and uploading, or by sending the document as described in the preceding paragraph, and resolving the case as specified by the Immigration Services Verifier at DHS who will determine the photo match or non-match.

ARTICLE IV

SERVICE PROVISIONS

The SSA and the Department of Homeland Security will not charge the Employer for verification services performed under this MOU. The Employer is responsible for providing equipment needed to make inquiries. To access E-Verify, an Employer will need a personal computer with Internet access.

ARTICLE V

PARTIES

1. This MOU is effective upon the signature of all parties, and shall continue in effect for as long as the SSA and the Department of Homeland Security conduct E-Verify unless modified in writing by the mutual consent of all parties, or terminated by any party upon 30 days prior written notice to the others. Termination by any party shall terminate the MOU as to all parties. The SSA or the Department of Homeland Security may terminate this MOU without prior notice if deemed necessary because of the requirements of law or policy, or upon a determination by SSA or the Department of Homeland Security that there has been a breach of system integrity or security by the Employer, or a failure on the part of the Employer to comply with established procedures or legal requirements. Some or all SSA and Department of Homeland Security responsibilities under this MOU may be performed by contractor(s), and SSA and the Department of Homeland Security may adjust verification responsibilities between each other as they may determine.

2. Nothing in this MOU is intended, or should be construed, to create any right or benefit, substantive or procedural, enforceable at law by any third party against the United States, its agencies, officers, or employees, or against ____________________ (Employer), its agents, officers, or employees.

3. Each party shall be solely responsible for defending any claim or action against it arising out of or related to E-Verify or this MOU, whether civil or criminal, and for any liability wherefrom, including (but not limited to) any dispute between the Employer and any other person or entity regarding the applicability of Section 403(d) of IIRIRA to any action taken or allegedly taken by the Employer.

4. The employer understands that the fact of its participation in E-Verify is not confidential information and may be disclosed as authorized or required by law and Department of Homeland Security or SSA policy, including but not limited to, Congressional oversight, E-Verify publicity and media inquiries, and responses to inquiries under the Freedom of Information Act (FOIA).

5. The foregoing constitutes the full agreement on this subject between the SSA, the Department of Homeland Security, and the Employer.

6. The individuals whose signatures appear below represent that they are authorized to enter into this MOU on behalf of the Employer, SSA, and the Department of Homeland Security respectively.

To be accepted as a participant in E-Verify, you should only sign the Employer’s Section of the signature page. If you have any questions, contact E-Verify at 888-464-4218.

Employer

____________________________________

Name (Please type or print)

__________________________

Title

____________________________________

Signature

__________________________

Date

Social Security Administration

____________________________________

Name (Please type or print)

__________________________

Title

____________________________________

Signature

__________________________

Date

Department of Homeland Security - Verification Division

____________________________________

Name (Please type or print)

__________________________

Title

____________________________________

Signature

__________________________

Date

INFORMATION REQUIRED

FOR E-VERIFY

Information relating to your Company:

Company Name: _____________________________________________________________

Company Facility Address: _____________________________________________________________

(Hiring Site) _____________________________________________________________

_____________________________________________________________

Company Alternate Address: _____________________________________________________________

_____________________________________________________________

County or Parish: _____________________________________________________________

Employer Identification Number: _____________________________________________________________

North American Industry

Classification Systems Code: _____________________________________________________________

Parent Company: _____________________________________________________________

Number of Employees: ______________ Number of Sites Verified: ______________

Are you verifying for more than one site? If yes, please provide the number of sites verified.

• site(s)

Information relating to the Program Administrator(s) for your Company on policy questions or operational problems:

Name:

Telephone Number: Fax Number:

E-mail Address:

State Level Employment and Contractor Issues

Over the last 12 months alone, hundreds of pieces of legislations have been introduced in state legislative bodies in an effort to regulate, monitor and control the legal work authorization status of workers within those states. Unfortunately, these various pieces of legislation do not necessarily coordinate with federal legislation and/or the other state legislation, and as a result, there are mixed, and even conflicting instructions with regard to procedures and requirements which U.S. employers must follow. As a consequence, all U.S. employers must address these compliance requirements, regardless of the “legal status” of their employees, and, making analysis as to what steps they need to take in conjunction with state contracts, public contracts, employees in multiple states, services by employees in various states, etc. Also, these state based requirements are in conjunction with federal requirements so the federal rules must also be considered in this analysis.

By way of background, pursuant to the Immigration Reform and Control Act of 1986, all U.S. employers are required to verify the identify and work authorization status of all U.S. workers via the I‑9 Verification Program. The I‑9 Verification Program is an “honor system” whereby the employee presents identify and work authorization documents to the employer, and the employer reviews and records such documents. In addition, over the last few years, U.S. federal government has developed a program previously known as Basic Pilot, then Basic, recently renamed E-verify. This electronic enables an employer, to program once an employee is hired and completes an I‑9, the employer, input certain information about the employee from the I‑9 form. From this E-verification portal, the employer will then receive information about the inputted information. E-verify will either confirm or deny that the information matches the government databases.

For a variety of reasons, many employers have chosen not to undertake this elective process. First, it adds to the human resources’ workload, by its own admission the E-verification system has an inaccuracy rate of approximately 8%, employers fear lawsuits should they fail to hire someone who is properly authorized but does not match within the system, (use by government agencies of the backside of E-verification data with regard to the employer.) etc. Recently, in an effort to make this system more attractive to employers, the federal government has indicated that it will give “preference points” to federal contractors that make use of the E-verification system. And in addition, in the Department of Homeland Security has sought to upgrade the system by seeking comments and complaints from U.S. employers with regard to the use and application of E-verify. The vast majority of U.S. employers though, have chosen not to undertake this elective system because of the above-noted concerns still exist.

Employers fear state legislators have been seeking ways to reduce alleged costs associated with immigration and/or to address or appease political concerns related to the immigrants in the United States and therefore, some of the below described requirements have been enacted. Many of these include E-verification. At some point in time there’s likely to be federal litigation related to E-verifying and different rules with regard to the use and application of this federal system at state levels, most likely based on commerce clause, due process and other arguments, but in the meantime, employers in certain states need to be aware of these requirements, in addition, employers who contract with the federal government or the state government, also need to be aware of the various requirements which have arisen through all of this recent legislation.

Please note also, that there is a great deal of ambiguity with regard to these various states rules and the application to a multi-state employers as well as multi-site employers, and multi-location employers, off-site employers, off-site employees, etc. We will continue to monitor these issues and provide the best answer possible in light of the current available information. In addition, should you seek support and guidance with regard to the application and in particular state law or its application in conjunction with federal law, please let us know and we will work to clarify the matter through the proper regulatory agencies and/or the political system on your behalf. Finally, please note that this memo is “a living” document for all practical purposes since the law in this area is changing on an almost daily basis, and contact us before reliance upon it.

Arizona – House Bill 2779 (January 1, 2008)

1. Arizona legislation creates a Class 3 Felony aggravated violation by taking the identify of another.

2. An employer cannot intentionally or knowingly employ an authorized alien.

3. A complaint system is established in situation where an employer “intentionally” employs an unauthorized alien. If the complaint is justified, the employer could lose their license, be subject to 3 years of probation, affidavits etc.

4. Effective December 31, 2007 every Arizona employer must make use of the BASIC/E-verify employment verification system for all new hires.

5. **On July 13, 2007 a suit was filed by AZ Contractors Association/Arizona Employers for Immigration Reform and implementation of this requirement is on hold.

Arkansas – House Bill 1024 (August 1, 2007)

1. Under Arkansas legislation the state cannot contract with a contractor or subcontractor that the state knows uses or employs illegal aliens.

2. All contracts with the state for services in excess of $25,000.00, and all state construction contracts executed after January 1, 2007, must include a certification of compliance with immigration laws in support of a legal workforce. Subcontractors of such state contracts must also complete these certifications.

Colorado – House Bill(s) 07-1073, 1393, 065-1017 (August 9, 2006; January 1, 2007)

1. All contracts, even those with non-Colorado employers, with state agencies or political subdivisions must now include a contract certification that the contractor will not use illegal aliens and “has participated in or attempted to participate in” the employment verification system. For those employers who are not yet participating in the employment verification system, they must certify every 3 months they continue to try and sign up for the e-verification system.

2. Colorado contractors who discover that subcontractors are employing or contracting with an illegal alien must notify the subcontractor as well as the contracting state agency or political subdivision within three days of the discovery. Then, within three days of notice to the subcontractor, the subcontractor must be able to establish that it did not knowingly employ the illegal worker; if the subcontractor cannot establish this fact, the employer must terminate its contract with the subcontractor.

3. All employers are required within 20 days after hiring “to affirm” they have examined the legal work status of all new employees hired in Colorado after January 1, 2007. Arguably, execution of part 2 of the I‑9 form could qualify as such confirmation. Colorado employers under this law is not limited to employers who contract with the state, and therefore, it would include public and private Colorado employers. An employer is defined as a person or entity that transacts business in Colorado, employs another person to perform services of any nature at any time and has control over such payments or services.

4. While not in the language of the statute, but in the language of the supporting Colorado Division of Labor regulations, there is an additional requirement which is in fact greater than that of the federal government. Under the federal rules, employers can choose whether or not to copy the documents provided by the employee to confirm identity and employment authorization. Colorado regulation for Bill 1017 appears to require that all documents must be copied and does not leave the employer with the option. Also under the regulations, there is an affirmation that employers must complete. The Colorado Division of Labor has granted itself the ability to audit such compliance. If it finds that an employer recklessly fails to maintain the required documents or submitted false documents, the penalties are $5,000 to $25,000.

Georgia – Senate Bill 529

1. Companies that contract with the state, as well as the state in its role as an employer, must soon make use of the employer verification programs for employees.

2. Individuals who coerce or deceive people into providing labor or sexual services will be guilty of labor and sexual trafficking, which is now a felony.

3. Individuals who are not licensed attorneys should not be receiving compensation for providing legal advice. To do so is a violation of the law and they may not take advantage of anyone, particularly foreign nationals who are new to the United States.

4. An employer who fails to comply with the I-9 verification procedures, or fails to receive a Georgia driver’s license or identification card, may be barred from claiming deductible business expenses for state income purposes.

5. Payments made via a 1099 will require a 6% state income tax withholding unless the recipient of the 1099 provides a tax payer identification number that is properly issued. A payer who fails to make the 6% withholding will be responsible for those taxes.

6. Anyone in the United States who receives certain benefits via the state of Georgia will need to verify that they are legally in the United States before receiving such benefits. Certain benefits, such as K through 12 education, emergency room treatment, immunizations, treatment of communicable diseases, soup kitchens, crisis counseling or intervention, short term shelter, and prenatal care do not require verification of lawful presence in the United States before the services can be provided.

7. ** On 9/26/07 the DHS filed suit against the state of Illinois to block the state’s implementation of the state law.

Illinois – House Bill 1744 (August 2007)

1. Employers are prohibited from enrolling in the employment verification system, unless so required, until the Social Security Administration and the Department of Homeland Security databases are able to make a determination on 99% of the tentative non-confirmation notices within 3 days, unless otherwise required by federal law.

2. An employer who does enroll in the E-verification program is prohibited from using the program improperly and must certify that it has satisfied all the training, posting and other related requirements.

3. Employers using E‑verification must be sure that all the proper postings and notices are beings issued, including compliance with an Illinois Department of Labor notification/confirmation.

4. Local governments are prohibited from requiring an employer to use an employment verification system as condition for a receipt of government contract, as a condition for receipt of a business license, as penalty for violating any other license or similar rule.

5. There will be no discrimination in the hiring or use of native language.

6. It is a state based civil rights violation for over-documentation under 8 CFR1324(a)(b).

Iowa – Senate File 562 (July 1, 2007)

1. Any business that receives economic development assistance from the state of Iowa will be required to execute a contract confirming that the employees of the business are U.S. residents, or citizens, or authorized to work pursuant to federal law.

Kansas – (Add Senate Bill 83)

1. H2A workers are subject to tax withholding, unemployment treatment etc.

Louisiana – Senate Bill 753 (June 23, 2006)

1. Louisiana businesses with 10 or more employees are prohibited from state contracts if the employer knowingly employs an undocumented foreign worker. Penalties for such employment range from up to $10,000, cease and desist order, etc. unless the employer can show that the Louisiana determination was issued in error. In addition, upon a determination of knowing employment of an illegal alien, the attorney general or district attorney can file a complaint to seek revocation of licensing boards related to the employer’s business license which can then be suspended or revoked.

Maine – (CD1015, item 1, 123^rd Leg.)

1. Addresses the treatment of unemployment rules and cost for H2A workers.

Massachusetts – Executive Order 481 (February 23, 2007)

1. Undocumented workers cannot be used on state contracts. All state contracts will require the contractor to certify that they do not knowingly use undocumented workers, they will verify employment authorization under federal requirements, that they will not engage in discrimination, and they will not knowingly or recklessly accept altered documents from any worker.

Mississippi – (Senate Bill 2448)

1. Defines the rules regarding payment of benefits, even to aliens.

Missouri – Executive Order 07-13 (May 11, 2007)

1. State agencies are required to audit all state contractors to insure that the current employees of the contractor working on behalf of the state of Missouri are legally eligible to work within the United States under Immigration Reform and Control Act of 1986 and subsequent laws. The audit includes a letter which must be signed by the contractor and returned to the Full Employment Council of the State of Missouri.

2. All contractors for the state of Missouri must comply with local state and federal regulations related to the use of personnel who are authorized to work in the United States.

Montana –

1. This law outlines taxation and unemployment issues for services performed by aliens and certain independent contractors.

Nevada – Assembly Bill 383 (October 1, 2007)

1. The Director of the Department of Business and Industry must include a website linked to the Social Security Administration website whereby an employer may verify the social security numbers of its employees.

2. The Nevada Tax Commission is empowered to hold hearings concerning the eligibility, continuation or termination of a state business license held by any persons who have been found to engage in the unlawful hiring or employment of unauthorized aliens in violation of federal law. If this federal violation is willful, the Nevada Tax Commission may impose an administrative fine. Finally, a print-out from the Department of Business and Industry link to the Social Security Administration website can constitute prima facie evidence that the employer did not willfully violate immigration laws.

New Hampshire – House Bill 1278 (January 1, 2007)

1. An earlier enacted New Hampshire law, RSA 275-A;4, enacted in 1976, which prohibits an employer from employing an unauthorized alien, will now have an increased fines for noncompliance, from $1,000 to $2,500 for each day of noncompliance.

Oklahoma – (Senate Bill 1401; House Bill 1804) (November 1, 2006; May 9, 2007)

1. All police or peace officers in Oklahoma must provide valid proof of U.S. citizenship or U.S. permit residence status in order to hold such position and the employing agency must verify this status, apparently through the I‑9 employment verification process.

2. A public employer is defined as every department, agency or instrumentality of a state or political subdivision of the state.

3. All public employers of Oklahoma are required as of July 1, 2008 to use the Basic Pilot Program or the Social Security Verification Service (SAVE) Program.

4. All contractors and subcontractors that contract with the public employer for the physical performance of services are required to make use of the Basic Pilot Program and Social Security Number Verification Service (SAVE) for all employees.

5. A subcontractor under this provision includes a contracting employee, staffing agency or any contractor regardless of its tier or legal role.

Oregon – (Senate Bill 2002) (January 1, 2008)

1. An employer holding a farm-labor contractor license is prohibited from hiring “an alien not legally present or legally employable in the United States.” Complaints may be brought to the Commissioner of the Bureau of Labor in an effort to bring legal suits against any person violating the status via the use of employment of illegal aliens, and such suit can include TRO, etc. The Commissioner of the Bureau of Labor may also impose civil fines.

2. Workers comp related issues are addressed for alien workers.

Pennsylvania – House Bill 2319 (August 11, 2006)

1. State contractors are barred from knowingly employing or knowingly permitting their subcontractors to employ undocumented workers.

2. State contractors that require subcontractors to certify compliance with IRCA must notify federal authorities of the use by the subcontractors of an undocumented worker as an affirmative defense for the contractor.

Tennessee – House Bill(s) 11, 1274; Senate Bill 903 (January 1, 2007; May 24, 2007; January 1, 2008)

1. State contractors must first attest in writing that they will not use any illegal workers and will not contract with any subcontractor who uses illegal workers. Discovery of such a violation can result in a one year bar from state contracts, which may be appealed.

2. An employer cannot accept a tax payer ID number as an identity document or an employment authorization document. In such a case and employer or contractor must instead request I‑9 documentation pursuant to Immigration Reform and Control Act of 1986.

3. An individual, corporation, or partnership or any other legal entity is barred from knowingly employing, or recruiting or referring for a fee an illegal alien.

4. There is now a state criminal action to knowingly or recklessly employ illegal aliens or to encourage or induce the same. It is a reckless employment violation if the information provided by the person for the I‑9 compliance is later found to be false, but a defense to such violation would be if the employer uses the Basic/E-verification Employment Verification System.

5. Employers are required to keep I‑9 documentation and personnel files for two years after termination.

6. Violators may have their business licenses suspended up until a time that they can document that they no longer employ unauthorized workers, or if subsequent violations, the penalties include suspension of the business license.

Texas – House Bill 1196 (September 1, 2007)

1. All requests for public subsidies for economic development will require the businesses, and its subsidiaries, branches, divisions, affiliates, etc., to certify that it does not and will not knowingly employ unauthorized aliens.

2. Subsidies must be repaid within 120 days upon notification of the violation.

3. Public subsidies includes grants, loans, loan guaranties, benefits relating to an enterprise or empowerment zones, fee waivers, land price subsidies, infrastructure development and improvement designed to principally benefit a single business or a defined group of businesses, matching funds, tax refunds, tax rebates and tax abatements.

4. In addition to repayment of these subsidies, interest will attach. The amount of interest will be determined based on the written agreement before the subsidy is awarded. In addition to interest, the violating entity can also be required pay the attorney general or state agency costs and attorney’s fees should an action be brought by said agency.

Utah – (Senate Bill 103)

1. Unemployment compensation benefits issues, and as they apply to aliens.

Virginia – (House Bill 2294)

1. Workers compensation covers all workers, even those unlawfully in the US.

2. Creates a state cause of action for the unlawful hiring and employment of an illegal alien.

3. After 1/2/2008 all wages of $600 to an unauthorized alien may not be deducted if an employer convicted under this section of the law.

4. Upon conviction of a third plus offense, there is a loss of license.

West Virginia – Senate Bill 70 (June 16, 2007)

1. State cause of action for any employer in the state of West Virginia who knowingly employs, hires, recruits or refers for a fee either for him or herself, for private or public employment, an unauthorized worker.

2. All West Virginia employers are required to verify work authorization prior to employing or contracting with an individual for employment services.

3. An employers knowing violation of the section will result in state level fines of $100-$1,000, $500-$5,000, and $1,000-$10,000 and 30 days or jail, depending on the series of offenses.

4. An employer who knowingly and willingly falsifies records with regard to the legal status of the worker to the West Virginia Commissioner of State Department of Labor or representative is guilty of a misdemeanor; and can be fined and incarcerated

The Life of an ICE Raid

I. Creation of a raid

A. Investigation

The cause of a decision by ICE to initiate an investigation of an employer can vary wildly. Sometimes there are joint agency investigations for another agency, such as the DEA, EEOC, IRS, Social Security Administration, Department of Labor, Wage and Hour Office, Office of Special Counsel, Office of Inspector General, have reason to target an employer. The tools used to collect evidence in these investigations are the same tools used in almost any criminal investigation, data from other agencies, informants, witnesses, wire taps, cell phones, under cover agents, under cover photos, etc. The investigations can be limited to one ICE jurisdiction or it can be country wide. The length of the investigation can be a few weeks to many years.

B. Preliminary Evidence and Warrants

At a certain point after a certain amount of evidence has been collected, ICE, and often the U.S. Attorney, will seek a search warrant from a federal judicial judge. Based on the evidence to date, the warrant will identify those people, places and documents from which the government seeks additional evidence to support its claims that certain elements of certain crimes have occurred.

Also, ICE will “scope” the premises and prepare a report of the physical facilities. (As a precursor that an investigation is under way, we have had clients report that they have seen unknown people snooping around in bushes and around the building at times, even with cameras.) This report which will include in most cases, a list of the entrances, exits, large rooms, etc., will outline the best way for ICE to group, question and remove workers and to remove computers and files. Finally, before presenting a request for a warrant to a judge, the ICE officer will prepare an affidavit based on the evidence to date and upon report for the premises.

If the judge approves the warrant, the law requires that the raid take place within ten days, and barring certain unusual circumstances, during the daylight. The warrant will include a very specific list of items that the agents want to remove from the work place.

II. Execution of the Raid

A. Surprise!

Rambo is at your door! Raids often occur very early in the morning. Employers and employees are generally focused on coffee, when suddenly they are handed a warrant and told to hit the floor. Chaos, fear, anger – these are the emotional reactions upon the initial execution of a raid. Prepared employers soon thereafter will come and move to knowledge, calm and confidence. Anticipating the actions of a raid will better prepare an employer. A detailed list of the actual events which will occur, based on our experience, follows.

The confidence and knowledge of an employer not only helps them understand what to expect, but also comes through an employee and an employer, understanding their individual rights during the execution of a raid. With regard to employees, some employers provide employees (prior to a raid, maybe on an announcement board) with a list of their rights at all times (see ACLU rights list attached). As for the employer, the employer too has many rights and these rights should be exercised, politely.

III. Post-op of a Raid

A. Assessment and Actions

Once the initial chaos is over, there are still a great deal of action, activity, and questions and answers which occur after a raid. Employees, family members, managers, supervisors, co-workers, press, contractors, customers, community representatives, all have questions. A prepared company must address, quickly, many issues such as:

1. Employee Issues

a. Detention/Counsel

Those that are removed from the premises, rightly or wrongly, are taken to a detention center, which may or may not be close by. They generally cannot make phone calls, pick up children from daycare, or go home. Also legally, they may need legal counsel with regard to their own rights. The company can provide a list of qualified counsel, offer to pay for the counsel, but this issue needs to be addressed promptly. Generally, in the long run, it is often prudent to have such a list available so that a company can be prepared to hand it out to any employees.

b. Statements/Conflict of Interest

Detention is not nice. Folks are scared, angry, tired, anxious, and ICE will manipulate all of these emotions. Statements can be developed, with or without ICE’s assistance, which can harm the employer and the employee. A conflict of interest may result, but good company policies, programs, procedures and training can help buffer any fall out from such conflicts.

c. Release/Return to Work/Deport

Eventually ICE will work with people, names and documents through their system. Some folks will be released and able to return to work. Other folks will not be released, if it proves that the data they presented is not proper. Still, others will be released and told to appear for an ICE hearing. These folks will have to follow the laws with regard to employment while waiting for the hearing.

2. Employer Issues

a. Returning Workers/Undercover Workers

As for employers, they should remember that ICE will often send an unauthorized worker back to the employer with new documents and possibly a different name, which now make the worker appear or in fact be legal. This worker will then be able to initiate work, but more importantly, will possibly start taping, recording and documenting any issues with regard to the hiring practices of the employer and/or the statements by the employees of the employer.

Also, after a raid, the employer may be short the needed number of workers, so it might make the employer or HR “eager” to bend the rules or adopt new/weaker policies with regard to hiring standards. As noted sometimes these workers might therefore return with “new documents” to see if the employer will take the bait and hire a previous employee with the new name and number as evidence of knowingly hiring an unauthorized employee. The case may also arise where an undercover officer will apply for employment to see if folks from human resources make any admissions with regard to poor hiring practices and/or to monitor what is being said and known in the work place with regard to the workers. The need to quickly, fully staff should not negate the need to properly, correctly and constantly follow the standard legal guidelines regarding the hiring of workers and the requirement to provide adequate identity and work authorization documents. In addition, employers should be sure that they carefully advise managers, supervisors, human resources, and compliance officials, that this predicament resulting from the raid, does not mean a relaxation of the guidelines, and in fact enforcement of the hiring guidelines is as essential as it has always been.

b. Counsel

Also with regard to the employer, like the employee, it may have other issues to address too. First, counsel for the company and counsel for each employee of the subpoena or raid should be brought on board.

c. Report of Facts

Depending on the workers, a native language private investigator should be hired to address the issues and investigate the facts. For instance, in Chicago after a raid of a manufacture, a Slovenian-speaking private investigator came in and talked with all of the remaining workers, and the detained workers, to learn all the facts, issues related to the hiring and employment of the workers. This report proved most helpful in ascertaining the true facts. The report should address the following issues:

1. Explain the facts and circumstances, including location and time of the arrest.

2. Confirm whether the employee, previous to the arrest, ever been in contact with or made statements to or corresponded with ICE or other government agents.

3. Ask the employee to provide a list of questions made by ICE and the answers provided by the individual.

4. As the employee if any statements were made by ICE which would include certain assumptions or conclusions or speculations.

5. Confirm with the employee if, during any discussions with ICE, any other employees, manager, human resources staff, supervisors or ex-employees were discussed.

6. Confirm that if any time during transport the employee and other detained officials discussed any other co-worker, managers, supervisors, human resources staff or ex-employees.

7. Ask the employee if there is any information that the employee might have about other employees, supervisors, human resources staff, managers, sources of documents which may have some bearing on the individual’s current situation.

8. Learn at what location and what day the employee was hired, the individual who extended the offer to the employee, the individual who completed the I-9 form with the employee, who or how was the employee referred to the company for employment. What if any discussions took place by the referring individual, what if any discussions took place by the hiring individual, what if any discussions took place by the human resources staff or whoever completed the I-9 form, what documents the employee presented as evidence of identity and employment authorization upon execution of the I-9.

9. With regard to detention, if applicable, learn the location and conditions, in terms of the detention prior to release.

10. Ask if ICE threatened any criminal prosecution against the employee and if so, was any of this criminal prosecution in exchange for testimony against the employee.

11. While in the custody of ICE, did ICE make any recommendations or suggestions with regard to its ability to issue employment authorization documents or green cards or other benefits in exchange for undercover work or written statements or oral statements.

12. When appropriate, and with the advice of counsel only, statements might need to be prepared for the workers and have the workers sign and date those statements as to the legal actions of the employer and the employer’s knowingly being deceived or that a third party or rogue action occurred in conjunction with receipt of the documents, the referral, the hiring and that such actions were not known to employer. In order to prevent a possible conflict of interest, any such discussions or preparation of such statements should be made with counsel to the worker and a witness. Often workers who are here without authorization will disappear and not be available to provide future statements and hence, contemporaneous statements, against them, only on the direction of counsel, should be extracted.

d. Immigration Counsel

If not already on board, immigration counsel should be sought. Such counsel should include one(s) versed in immigration, litigation and employment law issues. Generally, U.S. attorney litigation experience is a real plus. Such folks are experienced at issues including work authorization questions, privilege, obstruction of justice, Fourth Amendment warrant questions, criminal and civil issues, sentencing guidelines, pleas, conflicts of interest, etc., and can properly guide an employer through the post-op raid activities.

e. Multiple Locations

An employer with multiple locations must remember that the work site too might be subject to future, even immediate, raids. Again, following the normal company policies, these operations might now consider the first raid as a tip to do an immediate I-9 audit et al. of the other locations.

f. Copies of Data and Documents at ICE

The company should be sure to have copies of all the documents. If ICE took copies of documents during the raid, at that time, the company should contact ICE and request copies of any removed documents. Occasionally, ICE will allow for copies to be made prior to the completion of the raid, but in many cases, not. For this reason, the index of documents, items removed during the raid, is essential. When an employer seeks from ICE copies of all the documents, which are needed for the company to best defend themselves, sometimes it’s helpful to provide copying services of some sort because the government staffing is not great and receipt of the copies could be delayed.

g. Timeline/Planning

If not already addressed, the employer and its counsel should make a clear timeline regarding the need to regularly meet and assess the situation, which might change hourly. For instance, immediately after a raid, we have had companies which have had a standing 7:30 a.m. conference call to discuss any activities which have occurred, or information which is learned in the previous days. This regular timeframe allows the remaining legal and operational issues to be addressed in a consistent manner.

h. RICO

The world of employment authorization will eagerly mutate into other areas and issues, including, RICO actions. A RICO action can be on civil and criminal levels.

i. Wage and Hour

Another mutation is DOL Wage and Hour investigations. As we saw in the Walmart case, and the private action brought by the workers against Walmart

j. M & A

Audit raids, etc. may need to be disclosed in an M&A world.

k. Contractor/Subcontractor Issues/Liabilities

These audit raid issues may bring life to subcontractor issues, and if so, the employee subcontractor standards need to be addressed. These issues can, and should in fact be addressed as the relationship is created and no assessed for the firs time during or after a raid. A company has many options on this front.

l. Sarbanes Oxley

A publicly-traded company may need to make certain disclosures such as certifications of compliance of the immigration laws pursuant to the Sarbanes-Oxley Act. Employers who are subject to Sarbanes-Oxley are also subject to certain whistle-blower practices and again compliance with the laws essential in such a situation.

m. State Laws/Local Ordinances

State and local law issues vary widely, and cage constantly. A raid by ICE can often trigger local actions. Again, wise pre-planning can avoid such consequences. If though, pre-planning does not occur, then an assessment of these issues should be made.

n. Verification Preparation

Future “verification” programs or options might need to be considered. A company might want to use this as a negotiation tool, depending on the terms of the raid.

o. Publication to Press, Customers, etc.

Always be prepared.

p. Other Code Sections

Finally, there is a list of code sections which might apply with regard to any litigation. The list includes, but is not exclusive, as follows:

1. Alien Smuggling 8 U.S.C. § 1324(a)(1)(A)(i)

2. Domestic Transporting 8 U.S.C. § 1324(a)(1)(A)(ii)

3. Harboring 8 U.S.C. § 1324(a)(1)(A)(iii)

4. Encouraging/Inducing 8 U.S.C. § 1324(a)(1)(A)(iv)

5. Conspiracy/Aiding or Abetting for Commercial Advantage or Private Financial 8 U.S.C. § 1324(a)(1)(A)(v)

6. Bringing Aliens to the United States 8 U.S.C. § 1324(a)(2)

7. Knowing Hire/10 or more/12-month period 8 U.S.C. § 1324(a)(3)(A)

8. Knowing Hire/Pattern or Practice 8 U.S.C. § 1324a(f)

9. Fraud and Misuse of Visas, Permits and Related Documents 18 U.S.C. § 1546(a) and (b)

10. Conspiracy to Possess Five or More Identification Documents With Intent to use Unlawfully 18 U.S.C. § 1028(f)

11. RICO Predicate Offenses 18 U.S.C. § 1425, 1426, 1427

12. Aggravated Felony 8 U.S.C. § 11101(a)(43)

13. Aggravated Identity Theft 18 U.S.C. § 1028A

14. Identity Theft 18 U.S.C. § 1028

15. Fraud and Misuse of Immigration Documents 18 U.S.C. § 1546

16. Misuse of a Social Security Card 42 U.S.C. § 408

17. Offenses Involving Immigration, Naturalization and Passports

Procedures & Processes for Government Agency Visits

A. If Approached By Government Officer: If a government officer (ICE, OSHA, Police, Border Patrol, Department of Economic Security, etc.) approaches you and requests information on the Company or a Company employee:

1. Direct the officer to the supervisor, on-site manager, or company's attorney and allow that person to deal with the officer directly. Politely state:

I am sure that the Company will cooperate. However, I am not the person to provide you that information. Let me get my supervisor or our lawyer who can work with you.

2. If there is no supervisor available or the officer will not wait to allow you to get a supervisor, the supervisor or you could follow the steps outlined below:

The supervisor should restate:

I am sure the Company will cooperate. However, I am not the person to handle your request. Let me get some information and get the person who should handle this for you.

4. Ask the officer his or her name (or look for his name badge on his shirt, if any);

5. Ask the officer what agency/department he or she is with (local police, sheriff, DPS, ICE, Border Patrol, Dept. of Economic Security, etc,) or look for any insignia on uniform, etc.

6. Ask for a business card. If the officer does not have one, write down the
information that he or she provides, such as name, agency, badge number, etc.;

7. If the officer is in "plain clothes" ask if you could see his official identification (to
ferret out imposters or bounty hunters, etc.);

8. Try to determine why the officer is there, what he or she wants, and if he or she is looking for someone in particular. If the officer requests information about a specific individual, tell the officer that you are not authorized to provide that information, but you are happy to contact someone who can handle the request.

9. If the officer states that he has a subpoena or warrant, ask for a copy so that you may review it and also consider sending it to the company's lawyer to review;

10. Contact the Company's designated contact person immediately so that they may communicate with the officer directly by cell phone or in person.

B. ICE: 3 Day Notice for Documents: If ICE shows up to review I-9's, they are supposed to provide a three day written notice. Do not waive the three days. Do not voluntarily give ICE anything. Contact the Company's designated contact person __________ immediately so that they may communicate with the officer directly by cell phone

C. If Agent Has Warrant for the Arrest of an Individual: If the agent has a warrant for an employee's arrest, do NOT interfere with the officer, or you may be arrested for obstruction, etc. Allow the police to arrest the employee but, notify the Company's designated contact person immediately so they can handle the incident.

D. If Agent Has Search Warrant or Subpoena for Records: If a government officer has a search warrant or subpoena for records, contact your supervisor and the Company's designated contact person ___________ immediately. A supervisor or manager should:

1. Ask for and KEEP a copy of the search warrant or subpoena;

2. Comply with the warrant or subpoena;

3. Attempt to maintain a list or log of documents, records or other things taken away by law enforcement;

4. If asked by law enforcement if they may take certain documents, records or other things, reply as follows, "only if it is covered by the search warrant." Refrain from providing consent to the removal of documents, records or things not covered in the search warrant;

5. Do not argue, resist or get into a confrontation with law enforcement;

6. Contact the Company's designated contact person __________ immediately so that they may communicate with the officer directly in person or by phone.

E. If Agent Requests SSNs, 1-9 forms, or Documents: If law enforcement requests the names and Social Security Numbers of employees, requests copies of Company or employee records or files, or requests to review their 1-9 forms, you should:

1. Politely state:

I am not the individual authorized to handle such a request, but I would be willing to contact my supervisor. Let me get some information from you and get the person who should handle this.

Then follow the steps outlined in Section A above.

2. Resist pressure from the agent to consent to provide documents or records even if they threaten to return with a search warrant or subpoena. Tell the agent that you do not have authority to provide the documents, but that you believe the company will cooperate and you will get the appropriate person who can communicate with them.

Contact the Company's designated contact person _________ immediately so that they may communicate with the officer directly in person or by phone.

MEMORANDUM

The Company is committed to obeying the law. The Company will only hire legal workers. It will not knowingly hire an undocumented or unauthorized worker. Additionally, it will not discriminate because of someone’s race, color, or national origin. It will not discriminate because of a person’s name, the language a person speaks, or because a person speaks with an accent.

Supervisors and managers are responsible for helping the Company obey the law and need to comply with the following:

1. NEVER say that there are undocumented workers or “illegal aliens” working at the Company. If you know for sure that an individual is not authorized to work in the United States you must report this information immediately to the President, General Manager, or Controller. The Company will then investigate your report in the same way it investigates all personnel and employment decisions and take the proper action.

2. NEVER assume that someone is not authorized to work in the United States merely because the person has a Spanish surname or does not speak English. DO NOT make off-hand or casual comments regarding whether someone is an undocumented worker or “illegal alien.” Such remarks can be construed as national origin discrimination.

3. DO NOT give rides to people you know are not legally working in the United States.

4. DO NOT provide housing or lodging for people you know are not legally working in the United States.

5. DO NOT help get documents or identification for people who are not authorized to work or assist them in getting hired.

6. DO NOT contact people in other countries to “place orders” for workers.

7. DO treat everyone respectfully and professionally.

8. DO use respectful words. When speaking of someone that is not authorized to work in the United States, use the terms “unauthorized worker” or “undocumented worker.” Do not use the terms mojado, wetback, illegal, or illegal alien.

9. DO remind supervisors not to talk casually about whether workers are unauthorized. You should never talk about whether someone is an undocumented worker or “illegal alien” unless you really know that they are unauthorized.

Violations of this policy can lead to discipline up to and including termination.

IMMIGRATION LAW COMPLIANCE POLICY
AND ACKNOWLEDGEMENT FORM

The Company is committed to employing only those individuals who are authorized to work in the United States. The Company does not unlawfully discriminate on the basis of citizenship or national origin. In compliance with the Immigration Reform and Control Act of 1986, each new employee, as a condition of employment, must complete the Employment Eligibility Verification Form I-9 and present documentation establishing identity and employment eligibility. The Federal Government currently provides approximately 24 documents from which employees may choose to show the Company at the time Company completes Section 2 of the I-9 Form.

1. I understand that the Company will only hire individuals who are authorized to work in the United States.

2. I understand that the Company does not unlawfully discriminate on the basis of citizenship or national origin.

3. I understand that under federal law I am required to provide the Company with valid and accurate documents to establish my identity and my authorization to work in the United States and I am required to complete Section 1 of the Form I-9 completely and truthfully.

4. By my signature below, I affirm that I am legally eligible for employment in the United States.

5. I hereby state that all information provided to the Company on the Form I-9 is true and accurate. I am aware that false statements, misrepresentations of fact, or material omissions may result in the termination of my employment.

6. I understand that I am an at-will employee, and that the Company and I both have the right to terminate my employment at any time, for any reason or no reason, with or without cause, and with or without notice. I understand that violation of the Company’s policies and practices, including the Immigration Law Compliance Policy, may result in discipline, up to and including termination.

7. I understand and agree to comply with all of the Company’s policies, practices, and procedures.

Employee Name (Print):____________________________________________________

_____________________________________________________ ________________
Employee Signature Date

Investigation by of Special Counsel of the Civil Rights Division of

Department of Justice

Under the law, employers may not discriminate on the basis of citizenship. It is important that employers do not target individuals, such as Latinos, or ask for additional documents when completing the I-9 Form. Employers may not ask for the type of document that an employee presents for purposes of completing the I-9 Form. The employee has the choice of the types of documents to present to the employer. An employer may not ask an employee to show identification or complete the I-9 Form until after the person is hired.

An individual may file a charge of discrimination with the Office of Special Counsel of the Civil Rights Division of the Department of Justice (“OSC”). For example, we had an employee of a company file a charge of discrimination because the employer did not accept a document for purposes of identification that had the individual’s name misspelled on the document. The document was the only document presented for purposes of completing the I-9 Form and was a document from List A documents. The company asked the employee to correct the misspelling. INS refused to reissue an identification card with the appropriate spelling of the person’s name. The individual filed a charge of discrimination with the OSC.

Companies want to be cautious in the manner in which they reject documents presented for the completion of I-9 Forms. An employer is merely required to properly complete the I-9 Form and to look at actual documents to determine if they are genuine. The OSC has recently expressed concern about employers being too diligent in the review of documents presented for identification. Employers may want to reevaluate their practices to ensure that employees who are reviewing I-9 Forms and documents are not being overzealous in searching for counterfeit documents. If an employer has a concern about a particular document, the employer can always send the document to ICE for review and approval, but, again, employers want to be cautious that they are not singling out certain groups of individuals and that the employer is not over utilizing this method of approval.

The OSC became involved with INS educational seminars held in Phoenix in 1998-1999 and later, which may have taught employers to become overzealous in their review of documents presented for work authorization or identity purposes. This situation has resulted in contradictory information arising between the ICE enforcement office in Phoenix and the OSC in Washington, D.C. Employers should evaluate their practices to ensure that they do not violate the anti-discrimination statutes. Overzealousness in reviewing documents is an area in which the OSC is extremely sensitive and is looking for violations.

If an individual files a charge of discrimination with the OSC, an employer should provide a position statement in response to the charge of discrimination. Employers should take these matters seriously. The OSC may ask for a request for information that employers should address when responding to the charge of discrimination. The OSC may conduct employee interviews, and review completed I-9 Forms.

Another red flag for the OSC is if employers randomly decide to renew the completion of I-9 Forms on an annual basis or on an arbitrary audit basis. Employers should ensure that they are not requiring employees to complete a new I-9 Form on an annual basis. Once an employer has a properly completed I-9 Form, there are limited circumstances that would cause the employer to have to recomplete the I-9 Form. Those limited circumstances would include completing a pre-audit of a company’s I-9 Forms and determining that a particular I-9 Form is incomplete. In that circumstance, it is appropriate to complete a new I-9 Form and attach it to the old I-9 Form to ensure that the company is in compliance with the laws. A company, however, may not randomly select individuals whom they suspect may have counterfeit documents and ask them to present the documents and complete an additional I-9 Form. As red flag issues arise at your company, please check with legal counsel to determine the best way to handle such situations, and steer clear of trouble with either the ICE Enforcement Office or the OSC.

Strategies for Immigration Compliance and Protecting Your Company

Companies need to be proactive and have procedures in place to help protect the company against charges that it knowingly or intentionally employed an unauthorized alien. The following are some issues and strategies to consider implementing as part of an overall strategy to avoid or defend against claims that the company is knowingly or intentionally employing an unauthorized alien. Companies should adopt comprehensive strategies that demonstrate the company’s commitment to complying with the laws and the due diligence it takes with regards to its own employees and the employees of companies it contracts with and that shows the company has taken appropriate action regarding employment eligibility issues.

I. Importance of Attorney-Client Privilege and Attorney Work Product Protection

It is important for companies who want to avoid being found to have knowingly or intentionally employed an unauthorized worker, and the civil and criminal penalties that may be imposed, to integrate the benefits of the attorney-client and attorney work product privilege regarding matters of identity theft or identity issues. It is very important for companies to consider these privileges to protect their companies and their employees from being targeted and prosecuted.

b. Companies may want to have legal counsel be the liaison between the company and government agents, police officers, or prosecutors, rather than a company employee or manager acting as liaison or writing and signing letters. If a company employee acts as the liaison or writes letters, the employee might then be named in a subpoena or named for prosecution. Steps should be taken to protect the Company and its employees and still exhibit cooperation with law enforcement. Many companies today are outsourcing responsibility regarding request for personnel data relating to identity issues to lawyers to handle.

c. It is also important to have a legal team that includes not only employment attorneys to handle inquiries about personnel data from ICE, the SSA, the State Attorney General, or a County Attorney’s office, but also white collar criminal attorneys and corporate attorneys who may be needed as part of the team to implement some of the strategies and defenses to assist in defending IRCA prosecutions.

II. I-9 and Immigration Compliance.

Federal law requires employers to verify the employment eligibility of all employees within three (3) business days after the employee begins work by using the Form I-9. Regulations technically require the employee to complete Section 1 of the I-9 on the first day of employment, but the employer has three (3) business days to complete the Form I-9. It is essential to have a complete Form I-9 for every employee, both because good faith compliance with the I-9 process can provide an affirmative defense if the employer is charged with knowingly employing an undocumented worker and because failure to properly complete a Form I-9 may result in monetary fines being imposed on the company, as discussed above.

There are several steps a company can take to help ensure that it complies with the federal I-9 requirements and to help build a defense if the company is ever charged with knowingly employing an unauthorized worker.

d. Complete an audit of every employee’s I-9 form before January 1, 2008 to make sure that the company has complete I-9s for every employee. If the company does not have an I-9 form or the I-9 form is incomplete, complete another I-9 and staple it to the original I-9. Do not backdate the I-9. Use the original hire date in Section 2.

e. Conduct I-9 and immigration compliance training for all employees that complete an I-9 on behalf of the company (Section 2 of the I-9). Train employees regarding what they may and may not do when completing the I-9 form on behalf of the company and what to look for to ensure that the I-9 is fully complete.

f. Weigh the advantages and disadvantages of electronically completing the Form I-9. There are processes available to have employees electronically complete and sign the Form I-9. However, using this system has drawbacks if the Form I-9 is ever audited and the information on the form is questioned. It may be better, especially in high-risk industries, to have the employee complete Section 1 in the employee’s own handwriting, which could later be verified to demonstrate that the employee provided the information. It is a business choice whether to complete the forms electronically or by hand, but requiring that the employee complete Section 1 in his or her own handwriting may have benefits if the company ever needs to defend itself.

III. ANTICIPATE AND DEAL WITH COMPLAINTS OR INQUIRIES REGARDING IMMIGRATION STATUS.

There will be a flotilla of immigration vigilantes in the form of members of the public who will be motivated and empowered to make complaints to the Attorney General or County Attorneys regarding persons who are suspected of not being authorized to work in this country. Businesses that are vulnerable to such complaints, which will include businesses that serve the public or that have a diverse work force that is visible to the public, may consider public relations and customer relations strategies for anticipating and dealing with the expected inquiries or complaints by the public regarding the alleged immigration status of the business’s employees.

Customer service personnel should be trained to respond to inquiries or complaints by the public politely but firmly to inform members of the public that the company takes its obligations to comply with immigration laws very seriously, that it checks all documentation upon hire, and that it does everything that the law allows the company to do in checking to make sure that proper documentation is presented to the company upon hire, but that the company is prohibited by law from taking more stringent actions against people based upon the way they look, dress, their last name, or other characteristics that appear foreign.

Companies may want to consider removing the names of employees from their uniforms or name badges in order to make it more difficult for members of the public to make complaints about employees who appear foreign. A person will be less likely to make a complaint and it will be more difficult for the Attorney General or County Attorney to investigate a complaint about a worker when the member of the public does not know the name of the worker. Obviously this could have an adverse effect on customer service because a nameless worker is less accountable for the quality of service. However, most companies should still be able to react to any customer service complaints that occur by asking the customer to identify the worker from whom they receive less than satisfactory performance.

IV. Responding to Government Inquiries.

Companies should have procedures in place to respond to government investigations or inquiries from government agencies or others regarding employees or employees’ social security numbers. The procedures should also address investigations by the County Attorney or State Attorney General initiated by a complaint that the company is knowingly or intentionally employing an unauthorized alien. For those states that enact employer sanctions laws, employers may expect many more visits from government agents asking questions or demanding to inspect records about employees.

A memo on responding to government investigations is attached. Company managers should be cautious about the manner in which confidential personnel information is disclosed and most companies understand that they generally should not provide confidential personnel information about the company or its employees, but rather to refer inquiries to a designated company representative. Front-line employees can tell investigators or others that the Company is happy to cooperate, but that the employee is not the proper person to handle the inquiry and will refer it to the appropriate person or the Company’s attorney.

V. Procedures for HR Investigations into Identity Issues.

Companies should develop and implement procedures to address identity issues. Companies need to have a procedure that is followed in all cases for two reasons: (1) to defend against charges that the company knowingly or intentionally employed an unauthorized alien by showing that the company is taking reasonable steps when it learns information that could suggest an employee is using false personal information and may not be authorized to work in the United States and (2) to defend against charges of discriminatory treatment by demonstrating that all employees are treated the same and in accordance with a pre-established policy.

The policy should contain provisions prohibiting discrimination based on national origin, race, ethnicity, appearance, language skills, and other protected characteristics.

VI. Employment Policies and Hiring Paperwork.

1. Use new hire acknowledgement forms where the employee affirms he or she understands the company’s commitment to employing only an authorized workforce and that the employee is authorized to work in the United States. A sample immigration compliance policy and employee acknowledgment form is attached.

2. Make sure the company has a written immigration compliance policy. Incorporate the policy into the company’s handbook if the company has one. If the company does not have a handbook, it should consider distributing the policy to employees as part of the new hire paperwork.

3. The company’s employment application should include a statement to be signed by the applicant affirming the accuracy of the information provided. For example:

I hereby state that all information that I provide on this application and in any interview is true and accurate. I am aware that false statements, misrepresentations of facts, or material omissions may be sufficient to disqualify me for employment, or if employed, may result in my termination.

4. The company’s employment application should include a carefully worded question regarding whether the individual is authorized to work in the United States. Depending on how the inquiry is worded, it could be used as evidence of discrimination. An employer may not ask about citizenship status. The question “Are you legally eligible for employment in the United States?” or “Are you authorized to work in the U.S.” has thus far been found to be acceptable.

5. The company’s employment application could include a statement, to be signed by the applicant, which states, “If employed, I understand that I will be required to provide proof of identity and legal work authorization.”

6. Use the Form W-9 with all new hires and current employees. A form W-9 is attached.

7. The company’s termination checklist should include as a possible reason for termination “Failure to properly complete a Form I-9.” Another reason for separation could be “Providing false information to the Company in violation of Company policy, practices, and procedures.” This could be the grounds for separation if after an investigation a company discovers that the employee provided false information to complete the Form I-9 or as part of a follow-up HR investigation.

VII. Employee Training.

Companies should train their employees on the company’s immigration compliance policy and highlight to all employees the seriousness with which the company treats employment authorization matters.

1. Train the managers and supervisors on the company’s immigration compliance policy and what they should and should not do in interacting with employees and dealing with immigration status. A talking points memo for managers and supervisors is attached.

2. Supervisors and managers should understand that the company is committed to legal employment practices and that as representatives of the company, supervisors and managers have special duties regarding legal work status.

3. Supervisors and managers should never discuss the immigration status or work authorization of an employee, whether they are at work or off work, whether they are speaking English or another language. Work authorization status is never a permissible topic of discussion after the employee has completed an I-9 and satisfied the federal employment authorization verification procedures.

4. All managers and employees should be told and understand that they should not ever discuss the legal status of an employee working for the Company; this means 24 hours a day, seven days per week.

VIII. Avoiding Charges of Discrimination.

Federal law prohibits discrimination on the basis of race, national origin, and citizenship status. Companies need to take care that they are not overzealous in verifying the identity and work authorization of employees or the company may face a discrimination charge.

1. The company should ensure that it has a strong anti-harassment and anti-discrimination policy and that it implements the policy.

2. The company should be very cautious of actions that could be construed as national origin or citizenship discrimination or actions that could be construed as violating the anti-discrimination provisions of the IRCA.

3. Under current federal law, employers are prohibited from asking for more or different documents if the documents that the employee provides to complete the Form I-9 “on their face reasonably appear to be genuine.” 8 U.S.C. § 1324b(6).

4. The company should ensure that it does not make decisions based on race, national origin, language ability or characteristics, accent, physical appearance, clothing characteristics of an ethnic group, religious attire, or other national origin characteristics.

IX. Records Retention Policies.

It is important for a company to review their records retention policies and makes sure that the policy is being followed at all the company’s locations. If the company is under government audit, it is restricted from destroying or eliminating documents. Similarly, if the company is involved in a lawsuit, it has a duty to maintain the relevant documents and electronic data.

The company’s record retention policy should cover a number of items, including but not limited to I-9 forms, wage and hour records, leave records, social security no-match letters, safety records, resumes, e-mail correspondence, other electronic data, and other personnel information. Companies may want to consider having legal counsel review the records retention policy.

As long as the company is not required to keep records because it is under a government investigation or involved in litigation or potential litigation, the company should implement the records retention policy and make sure that it is uniformly followed. Clean up old records. Shred I-9 forms and other personnel records that the company is no longer required to keep.

Keep in mind that documents containing personal and confidential information, such as social security numbers, date of birth, home address, and medical information, must be disposed of in a manner that will ensure it cannot be stolen and used. The company should shred documents containing personal and confidential information or use a document service that can provide those services.

X. Use of Leased employees, Employment Agencies, or Outsourcing Work.

Companies could consider using third party leased or temporary employment agencies, rather than hiring employees directly. The employment agency would become responsible for verifying the work authorization of the employees it provides to a company.

1. If the company decides to use a leased or temporary employee arrangement, require a strongly-worded written agreement wherein the agency certifies its compliance with federal and state laws relating to employment verification and anti-discrimination.

2. The contract the company has with the leased employee agency should contain a clause where the agency agrees to indemnify the company against any liability based on knowingly or intentionally employing an unauthorized alien.

3. Make sure that the contract contains a clause requiring the agency to provide the original I-9 forms for all employees within 72 hours in the event of a government inspection or request for I-9 forms.

4. Insert a clause in any contract that addresses what will happen if the agency is found to have knowingly or intentionally employed an unauthorized alien and has its license temporarily or permanently revoked.

5. Do not outsource work or hire subcontractors without a written contract and due diligence about the company or subcontractor. The written contract should contain provisions certifying that the Company complies with federal and state laws relating to employment verification.

XI. Contract Considerations.

Any contract that the company enters into could be impacted by immigration issues if the other party to the contract or the company were to have a license or permit suspended or revoked. When entering into contracts, companies should consider what might happen if one party to the contract has its license suspended or revoked.

1. Consider adding assignment provisions to all contracts allowing them to be assigned to successor companies.

2. Consider the effect of immigration related issues on contract provisions regarding delays and penalties for delays, particularly in the construction industry. Usually there is a provision in construction contracts and other contracts imposing liability for delays on the company that does not perform or cannot meet deadlines in the contract. Companies who have contracts that include delay provisions may want to consider including an exception not only for acts of war, acts of God, terrorist attacks, but also acts of the State that affect the company’s ability to conduct business because of immigration related issues.

3. General contractors should consider adding a contract provision stating that the subcontractor agrees to comply with federal and state immigration and employment verification laws and will indemnify the general contractor for any liability arising from any failure by the subcontractor’s to comply with the applicable laws.

4. Companies should insert provisions in all contracts, whenever possible, saying that they are relieved from the obligation to perform or fulfill a contract if their license is suspended or revoked because of immigration related issues.


City State Zip Code		Social Security #

I am aware that federal law provides for imprisonment and/or fines for false statements or use of false documents in connection with the completion of this form.	I attest, under penalty of perjury, that I am (check one of the following):
	A citizen or national of the United States
	A lawful permanent resident (Alien #) A ______________________________
	An alien authorized to work until
	(Alien # or Admission #) __________________________________________

1.	U.S. Passport (unexpired or expired)	1.	Driver's license or ID card issued by a state or outlying possession of the United States provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address	1.	U.S. Social Security card issued by the Social Security Administration (other than a card stating it is not valid for employment)
2.	Permanent Resident Card or Alien Registration Receipt Card (Form I-55 1)	2.	ID card issued by federal, state or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address	2.	Certification of Birth Abroad issued by the Department of State (Form FS-545 or Form DS-1350)
3.	An unexpired foreign passport with a temporary I-55 1 stamp	3.	School ID card with a photograph	3.	Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the United States bearing an official seal
4.	An unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A, I-688B)	4.	Voter's registration card	4.	Native American tribal document
4.		5.	U.S. Military card or draft record	5.	U.S. Citizen ID Card (Form I-197)
5.	An unexpired foreign passport with an unexpired Arrival-Departure Record, Form I-94, bearing the same name as the passport and containing an endorsement of the alien's nonimmigrant status, if that status authorizes the alien to work for the employer	6.	Military dependent's ID card	6.	ID Card for use of Resident Citizen in the United States (Form I-179)
		7.	U.S. Coast Guard Merchant Mariner Card	6.
		8.	Native American tribal document	7.	Unexpired employment authorization document issued by DHS (other than those listed under List A)
		9.	Driver's license issued by a Canadian government authority	7.
			For persons under age 18 who are unable to present a document listed above:
		10.	School record or report card
		11.	Clinic, doctor or hospital record
		12.	Day-care or nursery school record

Safe Harbor Timeframe
Action	Time Frame
Employer receives letter from SSA or DHS indicating mismatch of employees name and Social Security number.	Day 0
Employer checks own records, makes any necessary corrections of errors and verifies corrections with SSA or DHS.	0-30 Days
If necessary, employer notifies employee and asks employee to assist in correction.	0-60 Days
If necessary, employer corrects own records and verifies correction with SSA or DHS.	0-90 Days
If necessary, employer performs special I-9 procedure.	90-93 Days

3. DO NOT give rides to people you know are not legally working in the United States.

4. DO NOT provide housing or lodging for people you know are not legally working in the United States.

5. DO NOT help get documents or identification for people who are not authorized to work or assist them in getting hired.

6. DO NOT contact people in other countries to “place orders” for workers.

7. DO treat everyone respectfully and professionally.

8. DO use respectful words. When speaking of someone that is not authorized to work in the United States, use the terms “unauthorized worker” or “undocumented worker.” Do not use the terms mojado, wetback, illegal, or illegal alien.

9. DO remind supervisors not to talk casually about whether workers are unauthorized. You should never talk about whether someone is an undocumented worker or “illegal alien” unless you really know that they are unauthorized.

IMMIGRATION LAW COMPLIANCE POLICY AND ACKNOWLEDGEMENT FORM

1. I understand that the Company will only hire individuals who are authorized to work in the United States.

2. I understand that the Company does not unlawfully discriminate on the basis of citizenship or national origin.

3. I understand that under federal law I am required to provide the Company with valid and accurate documents to establish my identity and my authorization to work in the United States and I am required to complete Section 1 of the Form I-9 completely and truthfully.

4. By my signature below, I affirm that I am legally eligible for employment in the United States.

5. I hereby state that all information provided to the Company on the Form I-9 is true and accurate. I am aware that false statements, misrepresentations of fact, or material omissions may result in the termination of my employment.

7. I understand and agree to comply with all of the Company’s policies, practices, and procedures.

2. Make sure the company has a written immigration compliance policy. Incorporate the policy into the company’s handbook if the company has one. If the company does not have a handbook, it should consider distributing the policy to employees as part of the new hire paperwork.

3. The company’s employment application should include a statement to be signed by the applicant affirming the accuracy of the information provided. For example:

5. The company’s employment application could include a statement, to be signed by the applicant, which states, “If employed, I understand that I will be required to provide proof of identity and legal work authorization.”

6. Use the Form W-9 with all new hires and current employees. A form W-9 is attached.

1. Train the managers and supervisors on the company’s immigration compliance policy and what they should and should not do in interacting with employees and dealing with immigration status. A talking points memo for managers and supervisors is attached.

2. Supervisors and managers should understand that the company is committed to legal employment practices and that as representatives of the company, supervisors and managers have special duties regarding legal work status.

4. All managers and employees should be told and understand that they should not ever discuss the legal status of an employee working for the Company; this means 24 hours a day, seven days per week.

1. The company should ensure that it has a strong anti-harassment and anti-discrimination policy and that it implements the policy.

2. The company should be very cautious of actions that could be construed as national origin or citizenship discrimination or actions that could be construed as violating the anti-discrimination provisions of the IRCA.

3. Under current federal law, employers are prohibited from asking for more or different documents if the documents that the employee provides to complete the Form I-9 “on their face reasonably appear to be genuine.” 8 U.S.C. § 1324b(6).

4. The company should ensure that it does not make decisions based on race, national origin, language ability or characteristics, accent, physical appearance, clothing characteristics of an ethnic group, religious attire, or other national origin characteristics.

1. If the company decides to use a leased or temporary employee arrangement, require a strongly-worded written agreement wherein the agency certifies its compliance with federal and state laws relating to employment verification and anti-discrimination.

2. The contract the company has with the leased employee agency should contain a clause where the agency agrees to indemnify the company against any liability based on knowingly or intentionally employing an unauthorized alien.

3. Make sure that the contract contains a clause requiring the agency to provide the original I-9 forms for all employees within 72 hours in the event of a government inspection or request for I-9 forms.

4. Insert a clause in any contract that addresses what will happen if the agency is found to have knowingly or intentionally employed an unauthorized alien and has its license temporarily or permanently revoked.

5. Do not outsource work or hire subcontractors without a written contract and due diligence about the company or subcontractor. The written contract should contain provisions certifying that the Company complies with federal and state laws relating to employment verification.

1. Consider adding assignment provisions to all contracts allowing them to be assigned to successor companies.

4. Companies should insert provisions in all contracts, whenever possible, saying that they are relieved from the obligation to perform or fulfill a contract if their license is suspended or revoked because of immigration related issues.

IMMIGRATION LAW COMPLIANCE POLICY
AND ACKNOWLEDGEMENT FORM