American
Bar Association
Forum on the Construction Industry
![]()
![]()
Coping
with Enhanced Employer Enforcement
Eileen M.G. Scofield
404-881-7375
eileen.scofield@alston.com
Alston & Bird LLC
Julie
A. Pace
602-798-5475
pacej@ballardspahr.com
Ballard Spahr Andrews &
Ingersol, LLP
3300 Tower,
April
24-26, 2008
La
Quinta Resort and Club –
![]()
©
2008 American Bar Association
Coping
with Enhanced Employer Enforcement
A. Federal Verification Issues
1.
E-Verify - MOU
2.
New I-9 Employment Verification
B. Social Security Mismatch Issues
1.
The DHS Regulations
2.
Compliance – Decision Tree
C. State Level Employment and Contractor
Issues.
D. Life of an ICE Raid
E. Procedures and Processes for Meeting
with Government Agency Officers
F. Sample Company Memo
G.
Immigration
Law Compliance Policy and Acknowledgement Form
H. Investigation by Office of Special
Counsel of the Civil Rights Division of Department of Justice
I. Strategies for Immigration Compliance
and Protecting Your Company
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
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: |
New I-9 Employment Verification
USCIS announced that it has released a new
version of Form I-9, Employment Eligibility Verification, as well at the M-274,
Handbook for Employers, Instructions for Completing the Form I-9. The form and
handbook are supposed to be available on the USCIS website, but that website is
not always going to the new form, so attached is a link to the announcement and
the new form. USCIS "encourages" use of the new form immediately, but
indicates that it will not be required until notice is published in the Federal
Register. We will let you know when it is published.
Please remember to make a clean change and
always use the new I9 for all new hires, or always use the old I9 for all new
hires, at least until legally required to change. A mixing of the use of the
old and new form can accidentally lead to discrimination issues.
Office of Communications

November
7, 2007
USCIS
Update
USCIS Revises Employment Eligibility Verification Form I-9
Revision will eliminate certain documents for employment
verification
WASHINGTON—U.S.
Citizenship and Immigration Services (USCIS) announced today that a revised
Employment Eligibility Verification Form (I-9) is now available for use. All
employers are required to complete a Form I-9 for each employee hired in the
United States.
The revision
seeks to achieve full compliance with the document reduction requirements of
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
which reduced the number of documents employers may accept from newly hired employees
during the employment eligibility verification process. The revised Form I-9 is
a further step in USCIS’ ongoing work toward reducing the number of documents
used to confirm identity and work eligibility.
Key to the
revision is the removal of five documents for proof of both identity and
employment eligibility. They include: Certificate of U.S. Citizenship (Form
N-560 or N-570); Certificate of Naturalization (Form N-550 or N-570); Alien
Registration Receipt Card (Form I-151); the unexpired Reentry Permit (Form
I-327); and the unexpired Refugee Travel Document (Form I-571). The forms were
removed because they lack features to help deter counterfeiting, tampering, and
fraud.
Additionally,
the most recent version of the Employment Authorization Document (Form I-766)
was added to List A of the List of Acceptable Documents on the revised form.
The revised list now includes: a U.S. passport (unexpired or expired); a
Permanent Resident Card (Form I-551); an unexpired foreign passport with a
temporary I-551 stamp; an unexpired Employment Authorization Document that
contains a photograph (Form I-766, I-688, I-688A, or I-688B); and an unexpired
foreign passport with an unexpired Arrival-Departure Record (Form I-94) for
nonimmigrant aliens authorized to work for a specific employer.
Employers
are encouraged to start using the revised Form I-9 immediately. The form will
become
effective once the notice is published in the Federal Register. Both the
revised form and the “Handbook for Employers, Instructions for Completing the
Form I-9” are available online at www.uscis.gov.
To order
forms, call USCIS toll-free at 1-800-870-3676. For forms and information on
immigration
laws, regulations, and procedures, call the
– USCIS –
Office of Communications

November 7, 2007
Fact Sheet
USCIS Revises Employment Eligibility Verification Form I-9
Revision will eliminate certain documents for employment
verification
U.S.
Citizenship and Immigration Services (USCIS) has issued a revised Form I-9, Employment
Eligibility Verification, and M-274, Handbook for Employers,
Instructions for Completing the Form I-9. The revised form is now available
for use.
BACKGROUND
The Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)
mandated a
reduction in
the number of documents that employers may accept from newly hired employees
during the employment eligibility verification process. In 1997, the former
Immigration and Naturalization Service (INS) published an interim final rule in
the Federal Register eliminating some of the documents IIRIRA slated for
removal. However, Form I-9 was not updated to reflect the revised List of
Acceptable Documents at that time. USCIS has revised Form I-9 to bring it into
compliance with the 1997 regulation as a first step toward achieving the
document reduction goals set out in IIRIRA and as a further step in its ongoing
work toward reducing the number of documents used to confirm identity and work
eligibility. The most significant change to the revised Form I-9 is the
elimination of five documents from List A of the List of Acceptable Documents.
This and other minor revisions are detailed below.
Questions
and Answers:
Q: Where can
I get the new Form I-9 and the Employer Handbook (M-274)?
A: Both Form
I-9 and the Employer Handbook are available as downloadable PDFs at www.uscis.gov. Employers without computer
access can order USCIS forms by calling our toll-free number at 1-800-870-3676.
Individuals can also request USCIS forms and information on immigration laws,
regulations, and procedures by calling the National Customer Service Center
toll-free at 1-800-375-5283.
Q: What is
the difference between the revised Form I-9 and the old one?
A: Five
documents have been removed from List A of the List of Acceptable Documents:
o Certificate of
o Certificate of Naturalization (Form N-550 or N-570)
o Alien Registration Receipt Card (I-151)
o Unexpired Reentry Permit (Form I-327)
o Unexpired Refugee Travel Document (Form I-571)
One document
was added to List A of the List of Acceptable Documents:
o Unexpired Employment Authorization Document (I-766)
All the
Employment Authorization Documents with photographs in circulation are now
included as one item on List A:
o I-688, I-688A, I-688B, I-766
Instructions
regarding Section 1 of Form I-9 now indicate that the employee is not obliged
to provide the Social Security Number in Section 1 of Form I-9, unless he or
she is employed by an employer who participates in E-Verify. The section on
Photocopying and Retaining Form I-9 now includes information about
electronically signing and retaining I-9 forms.
The
estimated reporting burden under the Paperwork Reduction Act has changed
to reflect the latest estimates and, finally, the format, font, organization,
and grammar of the text have been improved to make Form I-9 more readable and
user-friendly.
Q: Can I
accept documents that used to be on the Form I-9 but aren’t now?
A: No.
Employers may only accept documents listed on the List of Acceptable Documents
on Form I-9. When re-verifying
employees, employers should ensure that they use the new Form I-9 with its
updated list of acceptable documents.
Q: Are there
any changes in the way the new Form I-9 is completed?
A: No. The
updated form should be completed exactly the same way as the old one was. The
only
difference
is the types of documents that employers may accept in Section 2.
Q: Is the
Form I-9 available in different languages?
A: The Form I-9
is available in English and Spanish. However, only employers in Puerto Rico may
have employees complete the Spanish version for their records. Employers in the
50 states and other U.S. territories may use the Spanish version as a
translation guide for Spanish-speaking employees, but must complete the English
version and kept it in the employer’s records. Employees may also use or ask
for a translator/preparer to assist them in completing the form.
Q: Are
employers in Puerto Rico required to use the 2007 Spanish version of Form I-9?
A: No. Employers
in Puerto Rico may use either the Spanish or the English version of the 2007
Form I-9 to verify employees. Employers in Puerto Rico may not use the expired
1988 Spanish edition of Form I-9.
Q: May I
continue to use earlier versions of Form I-9?
A: No.
Employers must use the 2007 edition of Form I-9, approved on June 5, 2007. All
previous versions of Form I-9, in English or Spanish, are no longer valid. The
1988 version of Form I-9 in Spanish expired in 1991. Employers who continue to
use the outdated editions of Form I-9 are subject to fines and penalties.
Q: When do I
need to begin using the 2007 edition of Form I-9?
A: The revised
Form I-9 is available now and will become effective once the notice is
published in the Federal Register. Employers are encouraged to start
using it as soon as possible. After the effective date, employers may incur
fines and penalties for failing to use the new Form I-9.
Q: Do I need
to complete the 2007 Form I-9 for all my employees or just the new ones?
A: Employers
only need to complete the 2007 Form I-9 for new employees. Employers do not
need to complete new forms for existing employees. However, employers must use
the 2007 Form I-9 when their employees require re-verification.
– USCIS –
OMB No. 1615-0047; Expires 06/30/08
Department of Homeland
Security Form
I-9, Employment
U.S.
Citizenship and Immigration Services Eligibility
Verification
![]()
Instructions
Please read all instructions carefully before completing this form.
![]()
Anti-Discrimination Notice. It is illegal to discriminate
against any
individual (other than an alien not authorized to work in the U.S.) in hiring, discharging, or recruiting or
referring for a fee because of that individual's
national origin or citizenship status. It is illegal to discriminate against work eligible individuals. Employers CANNOT specify which document(s)
they will accept from an employee. The refusal to hire an individual because
the documents presented have a future
expiration date may also constitute illegal discrimination.
What Is the Purpose of
This Form?
The purpose of this form is to
document that each new employee (both citizen and non-citizen) hired after
November 6, 1986 is authorized to work in the United States.
When Should the Form I-9 Be Used?
All
employees, citizens and noncitizens, hired after November 6, 1986 and working in the United States must complete
a Form I-9.
Filling Out the Form I-9
Section 1, Employee: This part of the form must be completed at the time of hire, which is the actual
beginning of employment. Providing the Social Security number is voluntary,
except for employees hired by employers participating
in the USCIS Electronic Employment Eligibility Verification Program (E-Verify). The employer is responsible
for ensuring that Section 1 is timely and properly completed.
Preparer/Translator Certification.
The
Preparer/Translator Certification must be completed if Section 1 is
prepared by a person other than the employee. A preparer/translator may be used only when the employee is unable to complete Section
1 on his/her own. However, the employee must still sign
Section 1 personally.
Section
2, Employer: For the purpose of
completing this form, the term "employer" means all employers
including those recruiters and referrers for
a fee who are agricultural associations,
agricultural employers or farm labor contractors.
Employers must complete Section
2 by examining evidence of identity and
employment eligibility within three (3) business days of the date
employment begins. If employees are
authorized to work, but are unable to present the required document(s) within three business days, they must
present a receipt for the application of the document(s) within three business
days and the actual document(s) within ninety (90) days. However, if
employers hire individuals for a duration of less
than three business days, Section 2 must be completed at the time
employment begins. Employers must record:
1. Document title;
2. Issuing authority;
3. Document number;
4.
Expiration date, if any; and 5. The date
employment begins.
Employers
must sign and date the certification. Employees must present original documents. Employers may, but are not required to, photocopy the document(s) presented.
These photocopies may only be used
for the verification process and must
be retained with the Form I-9. However, employers are still responsible for completing and retaining
the Form I-9.
Section 3, Updating and Reverification: Employers must complete Section
3 when updating and/or reverifying the Form I-9. Employers must reverify employment eligibility of their employees on or before the expiration date
recorded in Section 1. Employers CANNOT specify which document(s)
they will accept from an employee.
A. If an employee's name has changed
at the time this form is being
updated/reverified, complete Block A.
B. If an employee is rehired within
three (3) years of the date this form was
originally completed and the employee is
still eligible to be employed on the same basis as previously indicated on this form (updating), complete
Block B and the signature block.
C. If an employee is rehired within
three (3) years of the date this form was
originally completed and the employee's
work authorization has expired or if a current employee's work authorization is about to expire
(reverification), complete Block B and:
1.
Examine any
document that reflects that the employee is
authorized to work in the U.S. (see List A or C);
2.
Record the document title, document number and expiration date (if any) in Block C, and
3. Complete the
signature block.
What Is the Filing Fee?
There is no associated filing fee for completing the Form I-9. This form is not filed with USCIS or any government agency. The Form I-9 must be retained by the employer and made available for inspection by U.S. Government officials as specified in the Privacy Act Notice below.
USCIS Forms and Information
To order USCIS forms, call
our toll-free number at 1-800-870- 3676. Individuals can
also get USCIS forms and information on
immigration laws, regulations and procedures by telephoning our
Photocopying and Retaining the Form I-9
A blank Form I-9 may be reproduced, provided both sides are copied. The Instructions must be available to all employees completing this form. Employers must retain completed Forms I-9 for three (3) years after the date of hire or one (1) year after the date employment ends, whichever is later.
The Form I-9 may be signed and retained electronically, as authorized in Department of Homeland Security regulations at 8 CFR § 274a.2.
Submission of the information required in this form is voluntary. However, an individual may not begin employment unless this form is completed, since employers are subject to civil or criminal penalties if they do not comply with the Immigration Reform and Control Act of 1986.
Paperwork Reduction Act
We try to create forms and instructions that are accurate, can be easily understood and which impose the least possible burden on you to provide us with information. Often this is difficult because some immigration laws are very complex. Accordingly, the reporting burden for this collection of information is computed as follows: 1) learning about this form, and completing the form, 9 minutes; 2) assembling and filing (recordkeeping) the form, 3 minutes, for an average of 12 minutes per response. If you have comments regarding the accuracy of this burden estimate, or suggestions for making this form simpler, you can write to: U.S. Citizenship and Immigration Services, Regulatory Management Division, 111 Massachusetts Avenue, N.W., 3rd Floor, Suite 3008, Washington, DC 20529. OMB No. 1615-0047.
Privacy Act Notice
The authority for collecting this information is the
Immigration Reform and Control Act of 1986, Pub. L. 99-603 (8 USC 1324a).
This information is for employers to verify the eligibility of individuals for employment to preclude the unlawful hiring, or recruiting or referring for a fee, of aliens who are not authorized to work in the United States.
This information will be used by employers as a record of their basis for determining eligibility of an employee to work in the United States. The form will be kept by the employer and made available for inspection by officials of U.S. Immigration and Customs Enforcement, Department of Labor and Office of Special Counsel for Immigration Related Unfair Employment Practices.
|
Department of Homeland Security U.S. Citizenship and Immigration Services |
OMB No. 1615-0047; Expires 06/30/08 Form I-9,
Employment Eligibility Verification |
![]()
Please read instructions carefully
before completing this form. The instructions must be available during
completion of this form.
ANTI-DISCRIMINATION NOTICE: It is illegal to discriminate
against work eligible individuals. Employers CANNOT specify which
document(s) they will accept from an employee. The refusal to hire an
individual because the documents have a future expiration date may also constitute illegal
discrimination.
Section 1.
Employee Information and Verification. To be completed
and signed by employee at the time employment begins.
![]()
Print Name: Last First Middle
Initial
Address (Street Name and Number) Apt. #
Date of Birth (month/day/year)
|
|
|
|
|
|
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 #) __________________________________________ |
|||
Preparer and/or Translator Certification. (To be completed
and signed if Section 1 is prepared by a person other than the employee.) I
attest, under penalty
of perjury, that I have assisted in the completion of this form and that to the
best of my knowledge the information is true and correct.
![]()
![]()
Preparer's/Translator's Signature
![]()
Address (Street Name and Number, City,
State, Zip Code)
Section 2. Employer Review and Verification. To be completed and signed by employer. Examine
one document from List A OR examine one document from List B and one
from List C, as listed on the reverse of this form, and record the title,
number and expiration date, if any, of the document(s).

![]()

![]()


![]()


![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
![]()
l attest, under penalty of
perjury, that to the best of my knowledge, this employee is eligible to work in
the United States, and if the employee presented document(s), the document(s) l have examined appear to
be genuine and to relate to the individual.
Signature of Employer or Authorized
Representative Date
(month/day/year)
![]()
![]()
LISTS OF ACCEPTABLE DOCUMENTS
LIST
A LIST
B LIST
C
Documents
that Establish Both Documents
that Establish Documents that Establish
Identity
and Employment Identity Employment
Eligibility
Eligibility OR AND
|
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 |
|
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 |
||||
|
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 |
||||
|
|
|
|
For
persons under age 18 who |
|
|
|
10. |
School record or report card |
||||
|
11. |
Clinic, doctor or hospital record |
||||
|
12. |
Day-care or nursery school record |
Illustrations of many of these documents appear in Part 8 of
the Handbook for Employers (M-274)
Options Available to All
Social
Security Mismatch Letter Background and new Regulations
On
average the Social Security Administration (“SSA”) receives over 250 million
earning reports from employers each year.
The majority of these reports are successfully matched with the
individual earning records and are then used to calculate future Social
Security benefits, such as retirement, disability and survivor’s benefits. Every year, however, the SSA is unable to post
some wage reports to individual earnings because the reported employee’s name
and number do not match Social Security records. For example, in 2002, the SSA was unable to
match almost nine million wage reports, representing $56 billion in
earnings. These funds are then placed in
the Earnings Suspense File (“ESF”), which contains more than $500 billion
dollars in earnings.
Every
year, the Social Security Administration, in conjunction with the IRS, issues
the Social Security Mismatch Letter to some employers to notify them that some
of the names and numbers for which the employers are reporting income do not
match in their system. Sometimes there
are very logical reasons for these mismatches, such as typographical errors or
name changes through marriage or divorce or incomplete names. Other times, the reason that the names and
numbers do not match in the system is because the names and numbers are
bogus. Occasionally, these bogus names
and numbers have belonged to foreign-born workers. The Department of Homeland Security (“DHS”),
in particular its Immigration Customs Enforcement Division (“ICE”), published
regulations on August 15, 2007, that
give it the legal authority to view receipt of the Social Security Mismatch
Letter by an employer as constructive knowledge of an unauthorized worker. This new regulatory authority is effective 30
days after publication, therefore September 15, 2007.
In
addition to this regulatory authority allowing ICE to assume that an employer’s
receipt of a Social Security Mismatch Letter constitutes constructive knowledge
of an unlawful worker (should the worker in fact be unlawful), the regulations
also provide a course of action that an employer can choose to take upon
receipt of the Social Security Mismatch Letter in an effort to secure “safe
harbor” in conjunction with receipt of this letter and in defense of a
constructive knowledge charge. The
specific steps needed to secure this safe harbor status are noted below. An employer should note though that this safe
harbor protects an employer against a claim of constructive knowledge of an
unlawful worker, but should there be other facts or circumstances and the
employer has “actual” knowledge that a worker is unlawful, the safe harbor will
not protect the employer.
Steps
to Follow Upon Receipt of the Social Security Mismatch to Reach Safe Harbor
Briefly,
the steps that need to occur are as follows:
Step
1. Upon receipt by the employer of the Mismatch
Letter, the employer must check their records against the Social Security
Mismatch Letter. If the employer
determines that there is an error in their records, within 30 days of receipt
of the letter, they must first correct their records; second inform
the SSA of the correction; third, verify (see instructions below) the correction
with the SSA and keep a written record of this verification with the
employee’s I-9 form; and fourth and finally, if needed, amend the I-9
form in the file to reflect the verified Social Security number. If, in the alternative, the employer checks
their records and finds that the name and number contained in their records is
the same as the name and number on the Mismatch Letter, then the employer must
proceed to Step 2.
Step 2. The employee, as directed by the employer,
must check the employee’s own records to ascertain the source of the
error. The employee will have 90 days,
from receipt of the Social Security Mismatch Letter, to ascertain the source of
the error, either from their own records or from personally visiting the SSA
and making the appropriate modifications.
Within 90 days of the date on the Social Security Mismatch Letter, the
employee must return to the employer and correct the number and name in
the employer records. At that time, the
employer must then contact the SSA and verify that the information newly
provided by the employee is a match within the Social Security system and the
employer must keep a written record of the date and time of that
verification with Social Security with the employee’s I-9 form. Finally, if needed, the employee must correct
the I-9 form to reflect the new information.
Step 3. If Step 1 is completed and the employer
finds no source of the error, and Step 2 is completed, and the employee finds
no source of the error, then no later than the 93rd day after receipt of the
Social Security Mismatch Letter, the employee must execute a new I-9 form with
the employer. This newly executed I-9
form though, has two restrictions. First
the employee may not present documentation that includes the faulty Social
Security number noted in the Mismatch Letter.
Second, the employee must present a document from the I-9 list of
documents that contains a photograph.
Those documents listed on the I-9 list that do not include a photograph
are unacceptable. Finally, the employer
must retain the newly executed I-9 with the original I-9 form.
Below
is a chart that outlines the time frame to secure the safe harbor.
|
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 |
When
required to verify with the SSA under Steps 1 and 2 noted above, the employer
should to contact the Social Security office via telephone at toll free number
1-800-772-6270 weekdays from 7:00 a.m. to 7:00 p.m. Eastern Standard Time. In addition, there is one online verification
procedure that can be found at http://www.ssa.gov/employer/ssnv.htm
or http://www.ssa.gov/employer/ssnvadditional.htm. Remember, employers are required to make a record
of the manner, date and time of the verification with the SSA since it does not
keep records of these verifications.
Note that this process can be timely and large employers may wish to
register for the Social Security Number Verification (SSNVS) on line system.
There
are a variety of issues that arise out of these regulations and the extensive
DHS comments. One such concern is a
comment that states that during Step 3, when an employee produces different
documents with different numbers or names, the employer may now be on notice
that the employee has committed document fraud.
Our concern would be whether or not an employer could then be deemed to
have committed “conspiracy” in conjunction with the document fraud by accepting
the new document. In addition, another
concern is that a reading of the regulations does not appear to require that,
in conjunction with Step 3, when a new documentation is provided, that
employers verify the new data, although they are certainly able to do so if
wanted. Finally, we want to confirm the
duplicative use of the word “verify” in these regulations.
ICE
Notices, Increased Fines, Increased Investigations, Federal Contractors
The new
regulations also outline the steps that should be taken by an employer upon
receipt of correspondence from DHS/ICE with regard to a mismatch within the
DHS/ICE databases or the Social Security system. These DHS/ICE letters, usually referred to as
a “Notice of Suspect Documents,” are almost always issued in conjunction with
an audit or raid. The steps for the safe
harbor are the same as with receipt of the letter from ICE, but we would be
glad to provide more information regarding the same.
Also
worthy of note, the administration and the Department of Homeland Security just
announced that it will use its existing authority to update civil fines for the
“knowing” employment of illegal immigrants.
We anticipate that these fines will be increased at least 25
percent. In addition, the administration
will continue to expand its criminal investigations against employers who
“knowingly” hire large numbers of illegal aliens. Since 1999, there has been a 6,000 percent
increase in these investigations and we expect that percentage to continue to
increase. Finally, the administration
intends to introduce rules that will require all federal contractors to use the
electronic verification system, recently known as BASIC Pilot Program and to be
known as E-Verify, as a term of doing contract with the federal
government. We will notify you as these
rules are published.
Future
I have the honor of serving by invitation on a
national SSA committee and in light of this role I am able to follow up with
the SSA and ICE regarding these and other employment verification issues and
concerns. Please send your comments to
me so they can be addressed at the highest level. Further advisories will be issued in the
future as these discussions proceed. In
the mean time, please feel free to contact us with any questions or concerns
with regard to amending the procedures you currently have, or establishing new
procedures for responding to Mismatch Letters, both current and new, as well as
steps to take in response to the same.
![]()
SOCIAL SECURITY NO-MATCH
LETTER SAFE HARBOR PROCEDURE
4 Document telephone conversations, retain all SSA
correspondence, computer-generated SSNVS printouts, emails, and screen
prints evidencing that the discrepancy has been corrected.


![]()
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
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
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.
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.
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
Maine –
(CD1015, item 1, 123rd 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
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:
Violations of this policy can lead to discipline up to and including termination.
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.
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
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.
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.
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.
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
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
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
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.
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.
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.
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.
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.
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.
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.
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.