The I-9 employment eligibility verification process was instituted as part of the Immigration Reform and Control Act of 1986. All employees (citizens and non-citizens) hired after November 6, 1986 must complete the applicable sections of the I-9 form. The employer is responsible for ensuring that the I-9 process is followed. Employers must retain completed I-9s for three years after the date of hire or one year after the date employment ends, whichever is later.
While the I-9 process does provide a paper trail for government investigators to follow, it does not provide adequate screening for employers. Additionally, the directions provided by the government sets up a catch 22 situation.
According to current law, employers cannot specify which documents they will accept from an employee to verify employment status. For example, if someone claims he has the right to work because he has a work visa, you can’t ask to see his green card.
Probably the biggest source of contention is the use of social security mismatch notices to warn of work authorization problems for a particular employee. It is not uncommon to receive a notification from the Social Security Administration (SSA) that information given by an employer does not match Social Security records. This could result from human error, such as copying down the number wrong or the employee accidentally giving the wrong number. The person may have legally changed his name or it could be a case of document fraud and/or identify theft.
The SSA indicates that using faulty data notices could put employers in jeopardy of being sued for illegal discrimination while the Department of Homeland Security (DHS) points to a bad Social Security number as proof of a problem. This fact does not seem to be lost on DHS. This summer DHS released more detailed guidelines for employers to follow in the case of no match letters. But these recommendations are just a band-aid for a system that needs to be overhauled.
IRI’s staff recently interviewed Ian Band, an immigration lawyer with Hunton & Williams, one of the top law firms in the country. Ian said, “You have two agencies that should have sat down years ago and provided employers some kind of guidance. Or else they can’t win. Employers are going crazy now trying to figure out what they can do to not have illegal workers. But the problem is nothing is fool proof.”
One possible action that you could take is to require the employee to visit the local Social Security office and bring back a letter or some other paperwork indicating that the matter has been cleared up before allowing the person to return to work.
Ian recommends to his clients if they receive notices from SSA to follow established policies and to take them seriously. Usually, the best thing to do is to go back to the employee and ask for clarification. Chances are if the employee is indeed working under false pretenses, he/she will not come back. In some cases, the employee will correct the issue and it will go away. If you keep on receiving notices about an employee after attempts to correct the situation, this is likely a sign of someone using fake documents. In those cases it is best to follow established policies that have been developed in conjunction with expert legal advice from an immigration attorney.
Remember that it is your employee’s responsibility to obtain work authorization and identification documents. All you need to do is inspect them to make sure that they appear genuine. While employers are not expected to be document fraud experts, employers should use common sense and setup practices used to verify the work status of all new hires.
Ian said, “The rule is that if someone gives you documents and they appear genuine and don’t look altered, then you accept it. If Immigration comes in and says this guy is illegal, as long as they can’t prove that you had actual or constructive knowledge that the person is illegal, you are protected.”
An example of actual knowledge is when a worker says he submitted fake papers. Constructive knowledge can be harder to nail down.
Ian said, “Constructive knowledge is this big grey area where you should have known based on the facts. They even say that heresay in the workplace is not constructive knowledge because the informant could have something against the other employee and want to get him fired.”
Greg Robertson of Hunton & Williams said, “If you are reasonable and diligent in your review of I-9s and have no actual knowledge that anyone is illegal or you don’t have any constructive knowledge by a set of circumstances that would lead you to conclude that something is clearly amiss here, absent that even if the person is illegal, the employer is not liable for it.”
One big problem for employers is that many of them don’t properly process I-9 forms. Employees tasked with overseeing the process may not be properly trained. Section III of this report covers some common problems and tips for complying with all federal I-9 requirements.
Ian said, “If you don’t do the I-9 at all or you do it wrong, and the people turn out to be illegal, then the government says that is knowledge because if you had done the I-9 right, you would have discovered it.”
Common mistakes include collecting documents that are inconsistent with what the person says at the top of the form. For example, the worker says that he is a U.S. citizen and the company collects a green card. The biggest problem is that someone gives an expiration date at the top, and he fails to go back and complete the re-verification section at the bottom to make sure that the person is still authorized to work.
Companies have to decide how proactive they will be to comply with work authorization laws. You can do the bare minimum or you can actively set up systems that help you crack down on illegal workers. Some companies even participate in new services offered by the government to help companies electronically verify the status of Social Security information.
The SSA offers a free verification service that employers can use to check the viability of social security data provided by new employees. While the service is available to all employers and third-party submitters, it can only be used to verify current or former employees and only for wage reporting (Form W-2) purposes. Please note that the service helps identify incorrect Social Security data not detect identify theft.
The fastest option is for limited quantities. Up to ten names and social security numbers can be checked online. Results are provided immediately by the SSA. The other option allows batch processing of up to 250,000 names. This service normally provides search results the next government business day. This option is ideal if you want to verify an entire payroll data base or if you hire a large number of workers at a time.
The online service is faster and easier than other common ways to submit information. Getting the correct Social Security data on workers is important because faulty data could mean that employees do not properly get credited for their contribution. This could affect their Social Security benefits in the future. Credits to your employees’ earnings records are important in determining their future eligibility and payment of Social Security’s retirement, disability and survivor benefits.
According to the SSA, it is illegal to use the service to screen potential employees. It can only be used for someone after the employee or contractor has been hired. Company policy concerning the use of the verification service should be applied consistently to all workers and not just to workers of a particular race.
Registration can be completed online at http://www.socialsecurity.gov/bso/bsowelcome.htm. The SSA offers telephone support by calling 800/772-6270.
The recent IFCO raids may be just the thing that some companies need to take a second look at I-9 policies. Managers and employees tasked with implementing I-9 procedures should be educated on company policies. Ultimately, the company will be held responsible for the outcome, even if you use a third party service to verify employment status.
Getting the right Social Security data is important because until the records are fixed, workers may not be getting proper credit for payments made on their behalf. Legal employees should want to have the right data because it is in their best interest to fix the problem. Of course, illegal workers do not care because they are not eligible for Social Security benefits.
Regardless of how diligent you are, if you hire workers from foreign backgrounds, you may end up unknowingly have some illegal aliens. Bill Riley, ICE’s former national unit chief for worksite enforcement, said, “The I-9 process created a boom in the fraudulent document industry.” He added, “Just because illegal workers are arrested at a facility, doesn’t mean that a company did anything to violate the law.”
ICE suggests that companies have a secondary inspection and review process as part of its I-9 procedures. That would require a third party or some other manger in the company to review I-9 information. Riley said that a secondary inspection helps keep the HR guy or some rogue manager from defrauding the system. Primarily, it reduces risk and vulnerability for the company and all personnel involved in the process.
In his 15 years in the agency, Riley said that he has never seen a manager or company charged for violating immigration law if the I-9 forms were filled out properly and the company did not know that a worker was indeed an illegal alien. He said that the law provides for a good faith defense against mistakes or simply being tricked by counterfeit documents that look real. Pointing to IFCO, he said, “These weren’t misunderstandings. These allegations are criminal actions.”
The entire system will likely undergo changes soon as Congress considers several alternatives to reform the current immigration requirements. Keep reading the Pallet Enterprise for updated information.
