If your I-9 program is not up to snuff, the U.S. Immigration and Customs Enforcement (ICE) Agency can freeze your operation and put you in cold storage. Here’s how to avoid slipping up.
Anyone aware of the news these days knows there’s a massive debate under way in the United States about the issue of illegal immigration.
Some 12 million illegal immigrant workers are said to already be in the United States, with more arriving daily. Most come for jobs and are willing to take even the most undesirable of tasks … jobs American citizens flatly refuse to do … as the pay is many times what it would be back home.
That makes the workplace a key line of defense. If such workers can’t get hired, officials reason, the inflow will dry up.
To this end, the U.S. government, through its Immigration and Customs Enforcement (ICE) agency, has begun aggressively leaning on companies, big and small, to stop them from hiring illegal immigrants.
Swift & Company was one company recently “ICE’d.” The giant meat packer had plants in six states shut down while agents rounded up more than 1,200 alleged illegal workers. Another firm, which recycles wooden pallets, had 40 locations hit, in 26 states. Homeland Security Secretary Michael Chertoff, whose department oversees ICE, promises more such action. “We’re going to keep bringing these cases,” he said.
The HR community has stated it is simply not equipped to handle the job of stopping illegal hiring. “HR cannot, and should not, be America’s surrogate border patrol agents,” protested SHRM President Susan R. Meisinger. Her reason: insufficient tools to verify a legal workforce.
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Nevertheless, employers are charged with verifying the legal status of every employee, with the tools currently in hand. Tools, which improperly handled, can result in civil penalties or, if it can be proved that you “knowingly” hired illegal immigrants for financial gain, can have you spending up to 10 years in jail.
Here’s a short course in what those tools are and how to use them:
–The I-9 Process: The I-9 form is the central element of the verification process. Every employee must fill one out within 3 days of hire, and the form must be kept on record, either in paper or electronic form, for 3 years if the worker stays with the company, or for a year after a worker leaves, whichever is longer. To fill out the form, the worker has to show proof of both identity (often a driver’s license) and of legal employability (often a Social Security card or legal immigrant’s “green card”). There’s a list of acceptable proof documents on the back of the I-9. The form need not be submitted to the government, but ICE will be more than a bit upset if it’s not on file and properly filled out when they do come to call.
–Social Security Number Verification Service (SSNVS). So that employees are properly credited with Social Security withholding, employers have to submit their workers’ Social Security numbers along with data on what the employee was paid. This can be done on paper, but it’s quicker and easier to use the SSNVS website (www.socialsecurity.gov/employer/ssnv.htm). Regardless of submission method, if the information the worker has submitted does not match what the Social Security Administration (SSA) has on file, a “no-match” notice will be issued. A number of steps must then be taken to check whether the worker is illegal or there was merely an error in the data. No adverse employment actions can be taken against the employee while these checks are in progress.
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–“Basic Pilot” Program. Basic Pilot is run by the U.S. Citizenship and Immigration Services (USCIS) and checks identity with both SSA and the Department of Homeland Security with a single submission. This both saves time and offers a layer of protection against potentially criminal applicants that submission to SSA alone does not provide.
–State Law. Tired of waiting for Congress to enact immigration reform, a number of states have enacted their own verification measures. Colorado, for example, requires filing not only I-9 forms, but also copies of the documents used to fill them out. Georgia mandates that public employers and their contractors with more than 500 employees join the Basic Pilot program, and Louisiana, Tennessee, and Pennsylvania all prohibit the award of state contracts to employers that hire illegal workers. And Arizona recently enacted a tough new law that requires all employers to process new hires through Basic Pilot, effective January 1. Employers found to “knowingly” have illegal workers on the payroll twice can lose their business licenses.
“The growing trend is certainly toward states requiring use of employment verification programs,” say attorneys Frances R. Rayer and Christopher R. Thorn of the firm of Buchanan, Ingersoll & Rooney, P.C., “though it is likely that these state laws will be challenged for unlawfully seeking to pre-empt federal law.” Until then, however, employers in these states must comply with these stricter than federal laws.
Tomorrow we’ll give you more detail about that centrally important I-9 process, so if ICE appears on your doorstep, you won’t slide into trouble.
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