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A Note To Employers On How To Comply With Immigration Law Without Engaging In Employment Discrimination

by Mira Mdivani, Esq.

A Cato Institute study recently concluded that 19% of the U.S. workforce is foreign-born. By various estimates, anywhere from 8 to 20 million foreign-born persons are in the U.S. without documentation. In contrast to those numbers, the annual cap for H-2B work visas for seasonal semi-skilled or skilled workers is 66,000, and that category is not even available for most jobs not generally desired by Americans, such as meat processing or office cleaning. President Bush has acknowledged that our immigration system is broken in that it pushes both employers and foreign workers to violate immigration law. However, the law stands unchanged, and it is getting grimmer and grimmer for both immigrants and U.S. employers. Here is a brief note on how it applies to employers. 

Why ALL Employers Must Comply with Immigration Law

Contrary to popular belief, U.S. immigration law not only applies to foreign nationals, it also applies to ALL employers in the United States. Under the 1986 Immigration Reform and Control Act (IRCA), as amended, each employer must implement an immigration compliance verification system, and (1) verify the identity and employment eligibility of each worker hired after the date of enactment of the law, (2) re-verify the continuous employment eligibility of certain workers, and (3) maintain records of employment eligibility, such as Form I-9, among others. Employers who do not comply with the law expose themselves to sanctions, criminal and civil liability. The Immigration and Customs Enforcement branch of the Department of Homeland Security can raid an employerís work place, disrupt its business operations, and impose sanctions up to $2,220 per worker for first-time violations, and up to $11,000 per worker for subsequent violations. Please note sanctions can be imposed for non-compliance as well as for overzealous compliance, such as over-documentation (e.g., asking workers for too much documentation as proof of employment eligibility). The federal government can also go after the employer and its officers and managers for violations of IRCA. Several recent indictments have shown that the government is likely to bring not only fairly "mild" IRCA-based charges for alleged immigration law violations, which may result in fines and up to five-year in jail, but also, broad Racketeering Influenced and Corrupt Organization Act (RICO)-based charges, calling for the forfeiture of business and life-long sentences for officers and executives. This is possible because IRCA violations are considered to be RICO predicate offenses, triggering criminal liability and treble damages. In the area of civil litigation, business competitors have successfully sued using RICO and IRCA alleging that immigration law violations give the defendant company an illegal competitive advantage. See, Commercial Cleaning Services v. Colin Service Systems, Inc., 271 F. 3d 374 (2nd Cir. 2001). Similarly, employees have successfully sued their employers under the theory that alleged violations of immigration law depress their wages and violate RICO in Mendoza v. Zirkle Fruit Co., 301 F. 3d 1163 (9th Cir. 2002). The latter case also appears to expand liability of employers for immigration law violations to contractorís employees. In March of 2005, Wal-Mart agreed to pay the government $11 million to settle a RICO-based suit triggered by allegations that Wal-Martís contractors used undocumented workers to clean Wal-Mart stores. Wal-Mart admitted that the company's compliance program did not include necessary procedures to deal with floor-cleaning contractors that didn't comply with federal immigration laws. The contractors paid the government $4 million and pled to various criminal offenses. In Williams v. Mohawk Industries, No. 04-13740 (11th Cir. Jun. 9, 2005), the 11th circuit decision that came down on June 9, 2005, the Court further solidified the law allowing class actions and RICO actions to go forward for alleged employer immigration law violations. In addition, immigration compliance is simply a must for public companies covered under the Sarbanes-Oxley Act.

Why Some Employers Are Not Serious About Immigration Compliance

Several reasons contribute to employer non-compliance. First, immigration law is complex, confusing and it changes all the time. Immigration code is the second longest after tax code. Immigrationís hand-book for employers contains instructions and forms are outdated and plain wrong. Some HR professionals have the wild idea that checking Social Security numbers is good immigration compliance, which is incorrect. Second, immigration enforcement is not highly visible. This year, the Department of Homeland Security has considerably more funds for employer enforcement, but we have not yet seen the results of their work covered in the press (except for the Wal-Mart case). In addition, as far as civil law suits go, corporate and employment lawyers are not always up to date on the latest immigration case law and legislation. At the same time, lately, we have many more requests for help from corporate counsel who are concerned with issues of immigration compliance.

Immigration Compliance Does not Excuse Employment Discrimination

I have encountered employers who, while treating their immigration obligations seriously,have taken their inquiries as to whether a worker is authorized to be employed in the United States, too far. Such practices appear to border on document abuse and discrimination. We have seen cases where Hispanic workers were denied employment because they could not produce a green card while they produced other acceptable documents, or where a foreign-born worker was not allowed to continue work after his green card expired. Both are illegal practices. In some cases, I-9 audits reveal that such practices are accompanied by a lack of employment verification if the worker appears to be born in the U.S., potentially pointing to a discriminatory pattern. Employers need to be reminded that employment discrimination based on race, ethnicity, and national origin are prohibited under federal law, and the laws of Missouri and Kansas, and that employment discrimination class action law is at this time very well developed. Both from a legal and ethical point of view, immigration compliance must not be achieved at the expense of employment discrimination. 

How To Balance Immigration Compliance With An Inclusive Non-Discriminatory Workplace

We work with our corporate clients on establishing comprehensive Immigration Compliance Plans. Such plans include:

  1. A written policy, which explains the balance between the duty to comply with immigration law and the duty not to discriminate
  2. Recurrent in-house I-9 audits
  3. Written procedures for I-9 verification and contractor certification
  4. Written procedures for record keeping (such as I-9 form and personnel files should be kept separate to avoid discrimination claims), and
  5. Recurrent HR training.
HR training is the most useful tool in creating a balance between immigration compliance and the duty not to discriminate. It trains HR personnel to treat all employees equally, apply proper procedures, and helps in protecting workers from discrimination and companies from violating the law. 


About The Author

Mira Mdivani, Esq. practices immigration law with the Mdivani Law Firm in Overland Park, KS. Mira is an expert in employer immigration compliance plans, I-9 audits, and other business immigration issues. Her articles on the issues can be found on www.uslegalimmigration.com


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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