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IRCA, E-VERIFY, And Immigration Compliance Laws In Tennessee And Arizona

by Greg Siskind

Introduction

On January 1st, employers in Arizona and Tennessee will begin having to comply with controversial new immigration laws that make those states enforcers of immigration law right along with the federal government. Whether state and local governments have the legal right to be doing this is the subject of many court battles around the country since the Founding Fathers clearly gave Congress the sole authority to regulate immigration. But with a Congress seemingly paralyzed in its attempts to get a handle on immigration policy and with 1400 bills pending around the country, the new reality is that employers will need to comply with a whole new set of laws on top of the existing federal rules.

The Arizona and Tennessee rules are similar in sanctioning employers who violate immigration laws with the revocation of their business licenses. This punishment is seemingly much more serious than the federal punishment of a fine since loss of a business license is really the death penalty for a business. Both rules provide a defense if employers have been complying with I-9 rules. Tennessee provides an additional safe harbor if employers have used the new E-Verify electronic employment verification system. Arizona goes a step further in actually mandating that all employers use E-Verify. This will represent a major expansion in the number of employers using E-Verify and it is far from clear whether the E-Verify system can handle the additional load. A recent report commissioned by the DHS itself noted that there is an unacceptable false positive rate and that as many as 10% of naturalized citizens show up in the E-Verify as being unauthorized to work.

Employers in Arizona had fought the new law and had been attempting to keep it from taking effect on the 1st. However, a judge has just denied an injunction order and the law will, in fact, take effect. An injunction is still holding in another measure aimed at employers – DHS’ social security number no match rule. DHS’ rule would sanction employers who are notified that their employees’ social security numbers and names do not match. One of the key issues in that case is also the high rate of false findings in the Social Security Administration database and the inability of that agency to resolve questions in a timely manner. However, DHS is promising to re-release a modified rule any day now that would attempt to meet the objections of the judge.

We provide information in this Article on the new Arizona and Tennessee laws, a primer on the E-Verify system and information on I-9 requirements (including reference to the new I-9 form which must be used as of yesterday, December 26, 2007). 2008 is likely to be a year of considerably more enforcement against employers violating immigration laws and we intend to cover the issue in great depth.

I-9 Forms And IRCA Compliance

While immigration can be a highly divisive issue, employers need to focus on complying with the law. Most employers will never file a visa application for a worker. But the mistake many business owners make is assuming that no foreign employees means no need to worry about immigration laws.  

This article will focus on the employment verification requirements under Immigration Reform and Control Act of 1986 ("IRCA"). Those provisions made every employer in the country a deputy of US Immigration and Customs Enforcement. Employers are required under that law to verify the identity and work authorization status of every employee of the business. The mechanism for compliance is the I-9 Employment Verification Form that every worker must complete on the day of hire or earlier. Failure to comply with IRCA’s I-9 rules can result in significant fines, loss of access to government contracts and highly negative publicity for a company. But despite the focus on immigration in the news, a large number of companies fail to comply with IRCA’s I-9 rules.  

The I-9 is a one page form employees complete verifying their identity as well as proving they are allowed to work in the United States . The form itself has three parts. Section 1 includes basic biographical information on the employee and also asks the employee to certify that he or she is a citizen, permanent resident or authorized to work under another status. The second section is completed by an employer who must verify what documents an employee presented to prove their identity and right to work and that the paperwork was completed in a timely manner. The third section is reserved for employers who must periodically update the I-9 Form if the worker is not authorized to permanently work in the US .

NOTE: The I-9 was updated in June 2007 and all employers must be using the new form as of December 26, 2007. 

Employees must present documentation of identity and work authorization and can present documents from a pre-set list included in the I-9 Form’s instructions. Some documents, like a US passport or a permanent residency card, can prove both identity and that one is legal to work. Some documents, like a driver’s license, prove identity only and some documents, like a social security card (other than a card stating it is not valid for employment) prove work eligibility. Employers are not allowed to tell employees which documents from the pre-set list they must present. Occasionally, an employee is authorized to work, but they have not been issued a document on the list. In such a case, an immigration lawyer may be able to provide a legal memorandum for an employer documenting the authorization to work and that will normally insulate an employer from liability. In some of these cases, the worker is entitled to 90 days to get the documentation to the employer though there are occasional cases where more time is permitted.   

IRCA requires all employers to have all employees hired after 1986 complete I-9 verification paperwork. Workers who are not hired do not need to complete I-9 Forms and employers who selectively choose who will and will not complete I-9s could face penalties under anti-discrimination rules. Volunteers are not subject to I-9 rules since they receive no "remuneration" for their services.  Independent contractors are also not subject to the I-9 rules, but employers should note that if they contract work to companies they know use unauthorized workers, they could be held liable as well under IRCA. Persons transferring within a company are not required to complete an I-9 form, but the easiest practice is usually to complete a new I-9 anyway rather than having to document the I-9 was done previously. Employees rehired by a company need not complete a new I-9 as long as they resume work within three years of completing the initial form I-9. Also, it is not necessary to complete a new I-9 after  

  • an employee  completes paid or unpaid leave (such as for illness or a vacation),
  • a temporary lay-off,
  • a strike or labor dispute,
  • gaps between seasonal employee.

When must the I-9 Form be completed?

The I-9 process must start on the day an employee starts work. The employee must complete the first section of the I-9 form and must provide the supporting documents noted above within three days of the date of hire. If the documents are not presented by that point, the employee must be removed from the payroll (though it is permissible to suspend the worker rather than terminating the worker all together). While it is possible to require people to complete the I-9 form before the first day of employment, many immigration lawyers caution against this because the form does elicit information about one’s national origin and a decision not to hire a worker could trigger a discrimination claim. To the extent an employer chooses to have I-9s completed before the date of hire, they should only be requested after a position has been offered and accepted and there should be a uniform policy applicable to all employees receiving an offer of employment having to complete the I-9 ahead of time.  

Can an I-9 Form be completed electronically?

In October 2004, legislation was enacted that allows for the I-9 to be completed, signed and stored on a computer. In June 2006, regulations were issued implementing the new statute. The new rules set standards for completing forms electronically and also for the scanning and storage of existing I-9 forms.   Since the change in the law a number of software products have come on to the market allowing for the electronic filing of I-9s and there are advantages to using such a system including improving accuracy in completing forms and setting up automated systems to prompt employers to re-verify I-9s for employees with temporary work authorization.

What are the I-9 recordkeeping requirements?

Employers must keep I-9 Forms for all current employees. For terminated employees, the form must be retained for at least three years from the date of hire or for at least one year after the termination date, whichever comes later.  

Retaining copies of the supporting documents is voluntary, however. Employers can retain copies of documents and attach them to the completed I-9 Form. Immigration lawyers disagree over whether employers should or should not retain copies of supporting documents. Certainly maintaining documentation could provide a good faith defense for an employer in showing that it had reason to believe a worker was authorized even if the paperwork was not properly completed. IRCA compliance officers may also be suspicious of employers that don’t keep copies of documents. Of course, keeping documents also leaves a paper trail. Whatever a company decides, however, it is important that the policy be consistently applied. Keep all the documents or keep none of them.  

What are the I-9 re-verification requirements?

If an employee is not a US citizen or lawful permanent resident, they are likely working based on a status with a defined end date. For these employees, the employer must note the expiration of their documents on the I-9 Form and then must pull their I-9 Form before the expiration date and re-verify that the worker’s status has been extended. Employers need to establish a reliable tickler systems to prompt re-verification. Aside from complying with the re-verification rule, this system will also ensure that an employer that needs to extend a work visa for an employee will not forget to take care of this critical task (something that is, unfortunately, neglected by many employers and can result in an employee falling out of legal status). Green cards and passports with expiration dates do not need to be re-verified.

How do mergers, acquisitions and other major changes affect I-9 requirements?

While a closing may be a cause for celebration at a company, it can also be the cause of a nightmare for a company since it can instantly render all completed I-9s for an acquired company invalid. If the acquiring company does not assume all of the assets and liabilities, then the I-9s will likely not transfer. In a merger case where the acquiring entity is a successor in interest, new I-9s will not be needed. However, I-9s should be checked in the due diligence process to ensure that the acquired I-9s are in good shape. Employers should consider adding I-9s to a merger checklist and have all employees of the combined company complete I-9 forms on the day of closing or beforehand. In any case, an immigration lawyer should be consulted in any merger, acquisition or divestiture to ensure that the transaction does not result in new immigration problems.  

What are the IRCA anti-discrimination and document abuse rules?

While employers need to be diligent about complying with IRCA’s employment verification rules, they should not be so overzealous that they end up penalizing qualified workers. IRCA also has anti-discrimination rules that can result in an employer facing stiff sanctions. Employers of more than three employees are covered by the IRCA anti-discrimination rules (as opposed to the 15 or more employees required by Title VII of the Civil Rights Act). IRCA protects most US citizens, permanent residents, temporary residents or asylee/refugee from discrimination on the basis of national origin or citizenship status if the person is authorized to work. Aliens illegally in the US are not protected.  

Under IRCA, employers may not refuse to hire someone because of their national origin or citizenship status and they may not discharge workers on those grounds either. The employer is also barred from requesting specific documents in completing an I-9 Form and cannot refuse to accept documents that appear genuine on their face. But note that an employer must be shown to have had the intent to discriminate.  

Employers can separately be sanctioned based on legislation passed in 1990 if they request more or different documents than required by the I-9 rules. Employers originally were held strictly liable for violations under this category, but in 1996 legislation was passed requiring a showing that employers intended to discriminate.  

What penalties does an employer face for I-9 violations?

Employers can face stiff penalties for IRCA violations that include substantial fines and debarment from government contracts. Penalties can be imposed for hiring unauthorized workers as well as simply for committing paperwork violations even if all workers are authorized to work. Fines for hiring unauthorized workers will amount to anywhere from $250 to $5,500 per worker depending on the prior history of violation. Employers can also be barred from competing for government contracts for a year if they knowingly hire or continue to employ unauthorized aliens. Paperwork violations can also result in significant fines. Each mistake or missing item on a form can result in a $100 penalty up to $1000 for each form. A missing form would automatically be assessed at $1000. An employer, for example, that had 100 employees and did not complete I-9 Forms might face a $100,000 fine. IRCA investigators have considerable discretion in assessing fines and will look at factors like the size of the company, the seriousness of the violations, whether the employer was trying to comply in good faith and the pattern of past violations.  

Employers should also be cautioned that knowingly accepting fraudulent documents from employees is a different kind of violation that can be criminally prosecuted under other immigration laws.  

Aside from federal violations, several states have passed or are considering passing laws that would penalize employers violating IRCA including barring such employers from state contracts and revoking their business licenses.

What are the best ways to prevent being prosecuted for I-9 violations?

steps:  

  1. Conducting a preventative internal audit of the I-9 files to see if there is a pattern of violations requiring remediation. Such an audit should be conducted by, or under the close supervision of, an immigration lawyer familiar with IRCA.
  2. Establishing a regular training program for human resource professionals regarding I-9 compliance rules. The training should be conducted by an attorney familiar with IRCA rules.
  3. Establishing uniform company policies regarding I-9s. Should copies of documents be retained or not? What kinds of questions can be asked about national origin and citizenship status before the date of hire? Is their uniformity in terms of when the employment verification is commenced?
  4. Establishing a re-verification tickler system to ensure I-9s are checked in a timely manner.
  5. Centralizing the I-9 Form recordkeeping process.
  6. Establish a process for human resource professionals to check quickly with counsel when there are any problems in the verification process.
  7. Establish a backup system to ensure timely compliance with I-9 rules when a human resource professional is out of the office. 

 

The E-Verify Electronic Employment Verification System

 

What is E-Verify?  

E-Verify, formerly known at the Basic Pilot Program, is a free Internet-based system that employers use to confirm the legal status of newly hired employees. It is mandated by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). The system compares social security number data and information in DHS’ immigration databases to the employee’s name and other Form I-9 information to confirm the employee matches. SSA has 425 million numbers in its database and DHS has sixty million records in its system. If an employee’s information does not match up, USCIS will notify the employer of the non-confirmation.  The average response time in E-Verify is three to five seconds.  

 

How many employees are typically run through E-Verify in a year?  

Right now there are over 33,000 employers using E-Verify. During the most recent fiscal year, nearly two million queries were made in the E-Verify system. That number is expected to increase dramatically as several states are requiring E-Verify be used by the states’ employees. 92% of verification queries are instantly verified.  According to DHS, the top industries using E-Verify are food services, drinking establishments, administrative and support personnel, professional and technical services, other information services and clothing and accessories stores.  

 

Who administers E-Verify?  

E-Verify is a partnership of the Department of Homeland Security and the Social Security Administration which is administered by US Citizenship and Immigration Services.  

 

How does E-Verify work?  

Employers submit information provided on an employee’s Form I-9 in to the E-Verifyweb site. The E-Verify system will return one of three results:

  • "employment authorized"- the employee is employment authorized
  • "SSA Tentative Non-Confirmation" – the Social Security Administration database is showing the employee’s name and social security number are not matching
  • "DHS Verification in Process" – The Department of Homeland Security will respond within 24 hours with either an Employment Authorized or DHS Tentative Non-Confirmation

If a worker shows up as "employment authorized" the employer will record the system-generated verification number on the Form I-9.  

If an employer gets a "tentative non-confirmation", the employer must promptly provide the employee with information about how to challenge the information mismatch and the employee can then contest the determination and resolve the mismatch with the Social Security Administration or Department of Homeland Security. The employee will have eight days to resolve the issue. The employee may continue to work with the case is being reauthorized.  

If the employee does not contest the finding, the determination is considered final and the employer may terminate the employee and resolve the case.   

Employers are also required to post a notice in an area visible to prospect employees that the company is an E-Verify participant. And the employer must post an anti-discrimination notice issued by the Office of Special Counsel for Immigration – Related Unfair Employment Practices, Department of Justice (DOJ) in an area visible to prospective employees.  

 

What computer requirements are necessary to use E-Verify?  

Users need an Internet-capable Windows-based personal computer and a web browser of Internet Explorer 5.5 or Netscape 4.7 or higher (with the exception of Netscape 7.0).  USCIS warns employers to "white list" the email address mailto:mEmployer.Pilots@dhs.gov in their spam filters.  

 

Can a company batchload data to E-Verify?  

Yes. DHS has a real-time batch method that requires a company develop an interface between its personal system or electronic Form I-9 system and the E-Verify database. Employers interested in more information on this including design specifications, should call 800-741-5023.  

 

What is the required timetable for using E-Verify?  

An employer can complete E-Verify any time after an offer of employment is accepted and after the Form I-9 is completed. This can be before the start date (as long as an employer is not pre-screening applicants), but in no case later than three business days after the new employee’s actual start date. Note that this doesn’t apply in cases where there is no social security number and then the employer should wait until the number is available (see question below regarding employees without social security numbers). A query may be submitted before the actual start date, but the employer needs to be careful not to pre-screen applicants and may not delay training or an actual start date based on a tentative non-confirmation and employee may not face adverse consequences as a result of the use of E-Verify unless a query results in a non-confirmation. And an employer cannot accelerate a start date for a worker because employment authorization is confirmed. Employers also must always be consistent in the timing of a query so as to avoid discrimination.  

 

Does E-Verify tell an employer anything about the immigration status of a new hire?  

No. The system only verifies an employer’s authorization to work and not immigration status.  

 

What is E-Verify’s photo screening tool?  

The E-Verify photo tool was incorporated in to E-Verify in September 2007 and enables employers to match the photo on an employee’s Employment Authorization Document (EAD) or a Permanent Residence Card ("green card") to the photo that USCIS has on file for that employee. The tool enables employers to detect instances of document fraud.  

 

What information does an employer need to supply for each employee?  

After an employee completes an I-9, the employer must submit a query that includes:

  • The employee’s name and date of birth,
  • The Social Security Number (SSN),
  • The Citizenship status he or she attests to,
  • An A number or I-94 number, if applicable,
  • The type of document provided on the Form I-9 to establish work authorization status, and
  • Proof of identity, and its expiration date, if applicable.

 

What about employees who don’t have social security numbers yet?  

E-Verify cannot be used for employees who do not yet have a Social Security Number (SSN). The I-9 still needs to be completed and after the Social Security Number is received, the query needs to be filed with E-Verify. If an employee otherwise meets the requirements to begin work without the Social Security number, the employee should be permitted to work until the Social Security number is received and the employee has gotten a negative response from DHS on the name check.  

 

What happens if E-Verify issues a non-confirmation finding?  

For SSA non-confirmations:  

If the employer receives a tentative non-confirmation from SSA, the employer must print out the notice and provide it to the employee so the employee can decide whether or not to contest the finding. If the employer erred in the data input, the employer should attempt to refile with E-Verify.  

The employer must then record the case verification number, review the data input in the system to make sure there was no error and find out if the employee will contest.  

If the employee will contest, E-Verify will provide the employer with instructions on referring employees to SSA field offices. The employer will print out instructions on how to seek correction with SSA and provide the letter to the employee with instructions that the matter must be resolved within eight federal government work days.  

After ten federal government work days, the employer will re-query E-Verify in order to get a confirmation or a final non-confirmation, unless the SSA instructs otherwise.  

For DHS non-confirmations:  

If the employer receives a tentative non-confirmation from SSA, the employer must print out the notice and provide it to the employee so the employee can decide whether or not to contest the finding. If the employer erred in the data input, the employer should attempt to re-file with E-Verify.  

If the employer finds a photographic non-match for an employee who provides a document for which E-Verify has transmitted a photograph, the employer must print the photographic non-confirmation notice and present it to the employee so the employer can decide on contesting the finding.  

If the employee will contest a regular non-confirmation case, the employer will print out instructions and the employee must phone DHS within 8 business days to attempt to resolve. In the case of a photographic non-confirmation, the employer will provide the employee with a referral letter to DHS. DHS will provide the results within 10 days of the referral unless it determines it needs more time.  

In photographic non-confirmation cases, the employer will send a copy of the employee’s Form I-551 permanent residency card or I-766 employment authorization document by  scanning and uploading the document or mailing a photocopy via express mail (to be paid by DHS). Where an employer cannot decide if the photograph matches or not, the employer should forward the photographic document to DHS for DHS to decide.  

 

Can employers selectively choose which employees are verified in the electronic system?  

No. Employers must verify ALL newly hired employees including both citizens and non-citizens. Employers may not pick and choose which employees are put through the verification system.  

 

Can an employer pre-screen job applicants through E-Verify?  

No. The employer needs to be careful not to pre-screen applicants and may not delay training or an actual start date based on a tentative non-confirmation and employee may not face adverse consequences as a result of the use of E-Verify unless a query results in a non-confirmation. And an employer cannot accelerate a start date for a worker because employment authorization is confirmed. Employers also must always be consistent in the timing of a query so as to avoid discrimination.  

 

Is E-Verify voluntary?  

For most employers, E-Verify is voluntary. However, a few states require E-Verify including Georgia , Colorado and Arizona (as of 1 January 2008). Oklahoma and a few other states require E-Verify for public sector employers.  

 

What if a company does not have a computer or Internet access? Can a third party agent be used to manage E-Verify filings?  

Employers can outsource to a third party agent the ability to submit employment eligibility verification queries. E-Verify designated agents must register online and sign a Memorandum of Understanding and an agent can represent multiple clients.  The employer would still need to separately register and complete a Memorandum of  Understanding and will have a unique client number. Designated agents can track their clients’ reporting, billing and compliance.  

 

What is an E-Verify Corporate Administrator?

An employer can designate an employee as a Corporate Administrator who has management authority over an employer’s hiring sites participating in E-Verify. This person generally would not conduct the actual inquiries, but after registering, would be able to register company sites, add and delete users at company sites and view reports generated by company sites.  

 

How does an employer sign up for E-Verify?  

To participate in E-Verify, an employment must register online at the DHS E-Verify page and accept the electronic Memorandum of Understanding (MOU) that details the responsibilities of the Social Security Administration, Department of Homeland Security and the employer. The registration page for E-Verify is at https://www.vis-dhs.com/EmployerRegistration.  

 

What are the government’s obligations with regard to privacy and data security?  

In the Memorandum of Understanding, the Social Security Administration agrees to safeguard the information provided by an employer and limit access information to individuals responsible for the verification of Social Security Numbers and for the evaluation of E-Verify. DHS agrees to safeguard the information provided by the employer and to limit access to individuals responsible for the verification of alien employment eligibility and for the evaluation of E-Verify. Information can only be used to verify the accuracy of Social Security Numbers and employment eligibility, to enforce the Immigration and Nationality Act and federal criminal laws and to ensure accurate wage reports to the Social Security Administration.  

 

What are the employer’s obligations under the Memorandum of Understanding?

The employer agrees to:

  • display the notices supplied by DHS;
  • provide DHS with the names and contact information of the employer representatives responsible for E-Verify;
  • comply with the E-Verify manual supplied by DHS;
  • ensure that the employer representative takes the E-Verify tutorial before attempting to file an E-Verify case;
  • comply with I-9 rules except that List B documents proving identity must have a photograph; also, if an employee presents an I-551 permanent residency card or an I-766 employment authorization document, the employer must keep a copy of the document;
  • notify DHS of any employee the employer continues to employ after a final nonconfirmation and is liable for fines of between $500 and $1000 for each failure;
  • not use E-Verify to engage in pre-employment screening or to support any unlawful employment practice;
  • not use E-Verify to selectively check only some employees as opposed to all new hires;
  • not use E-Verify to re-verify employees with I-9s requiring reverification or run existing employees through E-Verify;
  • to follow the rules with respect to dealing with tentative non-confirmations;
  • not to terminate an employee until a final non-confirmation is received from DHS unless an employer gains actual knowledge beforehand that an employee is not work eligible;
  • comply with the INA Section 274B anti-discrimination rules;
  • safeguard the information provided to and received from E-Verify under subject of criminal penalties;
  • permit DHS and SSA to make periodic visits to the employer for the purpose of reviewing E-Verify records.

 

Can a large employer have a controlled roll out of E-Verify instead of including every location? Can a large employer change the sites participating?  

Yes. An employer with multiple sites has flexibility. The employer can have one of its sites verify new hires at all of its sites or it can have each site perform its own verification inquiries. Whether one site is handling queries or multiple sites, each site must sign a separate Memoranda of Understanding (though DHS has recently informed the American Immigration Lawyers Association that a single MOU may be used by employers with more than 1000 employees and multiple sites). Employers with multiple sites should select "multiple site registration" and give the number of sites per states it will be verifying. An employer can also choose to only include some of its sites and can control the roll out of E-Verify across an organization. However, at each work site, all new hires for that site must be verified.  

 

What are the benefits of participating?  

Employers are presumed not to have violated the employer sanctions rules in INA Section 274A with respect to the hiring of any individual if it obtains confirmation of the identity and employment eligibility in compliance with the terms and conditions of E-Verify. Note that DHS does not consider using E-Verify to provide a "safe harbor" from worksite enforcement. Some states such as Tennessee do, however, consider using E-Verify a safe harbor from violation of the state’s new law which can lead to the revocation of a business license for employer’s knowingly hiring unauthorized immigrants.  

Using E-Verify will likely result in the elimination of no-match letters being received by a company. However, there are private companies that provide similar services, albeit at a cost. DHS also touts E-Verify as a way to improve the accuracy of wage and tax reporting, protecting jobs for authorized US workers and helping US employers maintain a legal workforce.  

 

Are there risks associated with participating?  

An employer will have a rebuttable presumption that it knowingly employs someone ineligible to work if it continues to employ someone after receiving a final nonconfirmation. If an employer believe E-Verify is incorrect, the employer will have a strong incentive to terminate an employee anyway in order to minimize the risk since an employer acting in good faith on information received from E-Verify is immunized from civil and criminal liability.  

Employers must agree to permit DHS and SSA officials to visit their work sites to review E-Verify records and other employment records related to E-Verify. And DHS and SSA may interview an employer’s authorized agents or designees regarding the employer’s experience with E-Verify for the purpose of evaluating E-Verify.  

Employers who have "buyer’s remorse" and choose to stop using E-Verify must continue using the program for 30 days after giving written notice to USCIS that it wants to stop using the system.  

 

Can an employer verify existing employees as well as new hires?  

No. E-Verify may not be used to go back and check employees hired before the company signed the MOU or re-verify employees who have temporary work cards.  

 

Can an employer quit using E-Verify?  

Yes, assuming state law does not require it. The federal government is considering legislation to require beneficiaries of certain government agencies’ contracts to use E-Verify, but no such law has passed yet. For employers to stop using the system, they must continue using the system and, per the signed Memorandum of Understanding, provide 30 days written notice to the government.  

 

Is an employer protected from an investigation if they use E-Verify?  

No. Worksite enforcement is still permitted, but an employer using E-Verify is presumed to not knowingly have hired unauthorized aliens.  

 

What can employees do who feel they have been subject to discrimination?  

Employers may not take any adverse action against an employee because the employee contests the information mismatch. This would include firing, suspending, withholding pay or training, or otherwise infringing on the employee’s employment. Employees who think they have been subject to discrimination because of their national origin or citizenship or immigration status with respect to hiring, firing, recruitment or referral for a fee, through an employer’s use of E-Verify, or when completing Form I-9, should call the Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration Related Unfair Employment Practices at 1-800-225-7688 for assistance.  

 

What states require E-Verify?  

Four states have passed legislation mandating E-Verify be used by employers in the state – Georgia, Colorado, Oklahoma and Arizona. Idaho, North Carolina, Pennsylvania and Missouri mandate that its state agencies participate in E-Verify.  Texas, Florida, Kentucky, Alaska, Kansas, South Carolina, Tennessee, Louisiana, Maryland and California are all considering legislation that would require state government employers to use the system and Utah, Missouri, Virginia and Rhode Island are all considering legislation that would require both public and private sector employers to use E-Verify.  

The state of Illinois bans employers from using the system until DHS documents the accuracy of the system has increased substantially.  

 

How reliable is E-Verify in accurately identifying unauthorized employees?  What other problems are showing up in the system?  

On November 21, 2007, USCIS released a report it commissioned from Westat, Inc. which it retained to evaluate E-Verify. While the report found that the number of false positives has decreased (the numbers have gone from 79% of queries approved to 92%), there are still numerous problems.  

E-Verify does not detect identity theft. In fact, Swift  and Company, the meat processing company that was raided early in 2007 and had more than 1500 employees arrested, used the E-Verify system. The employees subject to the raid were accused of identity theft. The new photo tool in E-Verify is designed to address this problem.  

One of the more disturbing findings in the Westat report found that foreign-born, work-authorized employees are much more likely to receive a tentative non-confirmation than a US-born employee. In fact, the foreign-born are thirty times more likely to receive a false-positive non-confirmation than a US-born employee.  

The Westat report also reported on employer compliance problems with E-Verify including a failure to properly train employees using E-Verify, employers terminating workers improperly and other employers not promptly firing employees who receive final nonconfirmation notices. Employers were also found to be restricting work assignments, delaying training, reducing pay, or requiring employees to work longer hours during the period when a non-confirmation is being tested.  

The Westat report can be found online at

http://www.uscis.gov/files/article/WebBasicPilotRprtSept2007.pdf.

 

Tennessee Business License Legal Memo: Immigration Compliance Laws

 

On January 1, 2008, Tennessee House Bill No. 729 (Public Chapter No. 529) will take effect. The bill creates a new version of Section 50-1-103 of the Tennessee Code Annotated. New Section 50-1-103 permits the Tennessee Commissioner of Labor and Workforce Development to order the suspension of a business license of any employer found to "knowingly employ, recruit or refer for a fee for employment, an illegal alien."   

 How does Tennessee define "knowingly"?    

The new law requires actual knowledge that a person is an illegal alien or, importantly, having a "duty imposed by law" to determine the immigration status of an illegal alien and failing to perform such duty.    

So aside from the obvious problem example of simply hiring someone an employer knows is out of status, an employer arguably could be found to have knowingly employed an illegal alien if the employer did not follow immigration law in determining the immigration status of an employee. This could mean failing to complete an I-9 for an employee, failing to examine the identity and work authorization documents associated with the I-9 and failing to re-verify employment authorization on I-9s for employees with expiring work documents.

 

Who is an "illegal alien"?    

While this may seem obvious, the definition in the bill is broad. All persons who are neither permanent residents nor authorized to work are "illegal aliens". So someone legally in the US who is not a permanent resident would be considered an illegal alien under the law. This might include a non-immigrant like a student, a legally admitted refugee or a person with a pending adjustment application who is awaiting green card status and is legally allowed to remain in the US while he or she waits. The catch is that if such a person is not authorized to work, for purposes of the law, they are illegal aliens. This is because the law is designed to prevent employers from illegally hiring individuals barred from working in the US and not just those who are out of status.    

 

How does the Commissioner of Labor and Workforce Development determine when to go after a company?    

In order for an investigation to occur of an alleged violation of the new law, a complaint must be filed. The complaint may be lodged by a state or local government agency, an "officer" (a term not defined), an employee of the company (though this presumably would cover a former employee as well) or an "entity" (this term is also not defined though it could presumably mean competitor companies as well as anti-immigration organizations).    

 

If the Commissioner determines there is evidence the new law has been violated, what is the process that occurs before a company's business license is affected?    

If the Commissioner determines that there is substantial evidence of a violation, then a hearing shall be conducted. After a hearing, if the Commissioner determines that that there is "clear and convincing evidence" that a person has violated the law, then an order shall be requested to revoke, suspend or deny an employer's business license. The commissioner is required to sate whether there have been prior violations of this law.    

 

If the business license is revoked, how can it be reinstated?    

For a first violation, the commissioner can only order the revocation of the business license "until the person shows to the satisfaction of the commissioner that the person is no longer in violation of subsection (b). If the case is focused on the employment of a single individual and the individual is terminated, then the business license would presumably be reinstated. But there is no timetable in the statute providing for how long the Commissioner has to make this determination. Furthermore, if an investigation determined that there may be numerous employees working illegally at the company because a company has been lax with respect to its I-9s and other immigration record keeping, the Commissioner might choose to conduct an audit to determine that a company has no other employees illegally working for them.    

 

What happens if a subsequent violation is found to have occurred?    

If an employer is found to have committed a second or subsequent violation within three years of the first order, the business license shall be suspended for one year.    

 

Is there an appeals process?    

The statute does not provide for an appeals process.    

 

Is an employer liable for work performed by independent contractors?   

No, as long as labor law does not consider the work to be true employment where a W-2 must be filed for a worker.    

 

Are there any safe harbors in the bill?    

Yes. If an employer has received an I-9 form from an employee within 14 days of hire (federal law requires such a form be received by an employee on the day of hire anyway and the documentation proving work authorization within three days of hire) and the information provided by the person was later determined to be false, an employer will not be found to have violated the new law.    

Employers are also protected if they have verified the status of a worker using the Department of Homeland Security's e-Verify electronic work authorization program (formerly called the Basic Pilot program).    

 

What steps can a company take to reduce the likelihood of being found to have violated TCA §50-1-103?    

Companies should consider the following actions:  

  • Conduct regular I-9 training for employees responsible for the function
  • Centralize I-9 record keeping
  • Establish a non-discriminatory system to re-verify I-9s with expiring work authorization documents
  • Switch to an electronic I-9 system rather than a paper-based one
  • Purge I-9s which you are legally permitted to purge
  • Have an outside firm conduct an internal I-9 audit to identify and remediate violations before a government audit occurs
  • Develop a government audit response plan and train employees thoroughly in how to respond to s surprise audit
  • Begin using the Department of Homeland Security's e-Verify system  

 

Are there other Tennessee laws covering employers and immigration?    

The main additional law was passed in 2006 and is Public Act No. 878. It bars employers who knowingly utilize the services of illegal immigrants in the performance of a contract from access to contracts with Tennessee state agencies. Employers are also required to sign an attestation that they will not knowingly use the service of illegal immigrants in the performance of the contract. Firms found to have used illegal workers in the performance a state contract will be barred from contracting with the state for a one year period. 

Arizona Business License Legal Memo: Immigration Compliance Laws

 

Barring a court order, on January 1, 2008, Arizona House Bill 2779, the Legal Arizona Workers Act, will take effect. The law requires the Arizona Attorney General or the county attorney to investigate employers that "intentionally employ an unauthorized alien or knowingly employ an unauthorized alien." Also, beginning on January 1, 2008, all employers are required to verify employment eligibility of their employees using the federal government’s e-verify program?  

 

How are complaints investigated in Arizona ?  

Complaints are investigated by the Arizona Attorney General (AG) or a county attorney (CA). The AG/CA is to check with the federal government to determine if the employee is an unauthorized alien. State, county and local officials are not to independently attempt to verify employment authorization. Persons who knowingly file false complaints can be charged with a misdemeanor. The statute does not say who can file a complaint, but presumably it will be interpreted broadly given the provision allowing for prosecution of false claims.  

If the AG determines the complaint is not frivolous, the AG/CA shall notify Immigration and Customs Enforcement, local law enforcement and the appropriate CA. The CA will then bring an action against an employer.  

 

What are the penalties if an employer is found to have violated the Arizona law?  

For a first violation where an employer is guilty of a "knowing violation", the court:  

1. shall order the employer to terminate the employment of all unauthorized aliens;

2. shall order the employer to be subject to a three year probation period where the employer will file quarterly reports with the CA on all new hires;

3. shall order the employer to file a signed sworn affidavit with the CA within three business days after the order is issued stating that the employer has terminated all unauthorized aliens and that the employer will not intentionally or knowingly employ an unauthorized aliens;

4. may, depending on the severity of the violations and all of the factors in the case, order the appropriate agencies to suspend the business license of the employer for up to ten business days. The license shall be reinstated as soon as the employer signs the affidavit noted above.  

For a first violation where an employer is guilty of an "international violation", the court:

1. shall order the employer to terminate the employment of all unauthorized aliens;

2. shall order the employer to be subject to a five year probation period where the employer will file quarterly reports with the CA on all new hires;

3. shall order the employer to file a signed sworn affidavit with the CA within three business days after the order is issued stating that the employer has terminated all unauthorized aliens and that the employer will not intentionally or knowingly employ any unauthorized aliens;

4. may, depending on the severity of the violations and all of the factors in the case, order the appropriate agencies to suspend the business license of the employer for up to ten business days. The license shall be reinstated as soon as the employer signs the affidavit noted above.  

For a second violation during the probation period in either case described above, the court shall order the appropriate agencies to permanently revoke the business license.  Employers who are found to be violators are to have their names listed on the AG website.  

 

Are there any safe harbors in the bill?

Yes.  If an employer has complied with the federal I-9 rules, the employer will have an affirmative defense that it did not intentionally or knowingly employ an unauthorized alien.  

Employers also benefit from a rebuttable presumption that they did not intentionally or knowingly employ an unauthorized alien if they have verified the status of a worker using the Department of Homeland Security’s e-Verify electronic work authorization program (formerly called the Basic Pilot program).  

 

How does Arizona define "knowingly"?  

The new law uses the same definition of "knowingly" as the federal I-9 statute (US Code Section 1324A). Federal law defines "knowing" to include both actual and constructive knowledge. Because constructive knowledge triggers liability, employers need to be very careful that the actions of managers and supervisor are monitored since their knowledge of violations can be imputed to the whole company.  

"Knowing" is not actually defined in USC Section 1324A, but DHS does have regulations, including a new one that was to take effect in September 2007, but as of the time of writing this article, was still the subject of an injunction barring implementation of the rule. Under the current regulation, employers will be considered to have "constructive knowledge" if an employer fails properly complete I-9 forms, has information that would indicate the alien is not authorized to work or acts recklessly for the legal consequences of an alien.  

The enjoined regulation added receiving a "no match" letter to the list of circumstances where a person would be held to know an employee’s unauthorized status. It would also permit punishment of employers that act with reckless and wanton disregard for the legal consequences of pending employees. Constructive knowledge can be avoided by following the no match rule's procedures including notifying employees of violations and requiring employees to re-file an I-9 at 90 days.  

 

Who is an "an unauthorized alien"?  

Arizona states that this includes an alien who does not have the legal right under federal law to work in the US as described in USC Section 1324a(h)(3). This is the section of the US Code containing the I-9 rules.  

 

Is an employer liable for work performed by independent contractors?  

The statute defines "employee" to mean anyone who performs employment services for an employer pursuant to an employment relationship between the employee and employer. This language is vague so presumably Arizona will look to its state’s labor laws in determining whether a true employment relationship exists. In short, while issuing a Form 1099 or paying a contractor will be an indicator that no employment relationship exists, if the actual nature of the relationship is consistent with an employer-employee relationship, Arizona has the ability to go after an employer.  

 

Do existing employees need to be run through e-Verify to satisfy the Arizona law?  

This is not clear, though the bill’s sponsor was recently quoted in the media saying that he believed employers are required to do this. DHS states in their instructions, however, that the system can be used only to verify new hires.  

 

What steps can a company take to reduce the likelihood of being found to have violated the new Arizona law?  

Aside from using e-Verify, which is required beginning January 1st, companies should consider the following actions:

  • Conduct regular I-9 training for employees responsible for the function;
  • Centralize I-9 record keeping;
  • Establish a non-discriminatory system to re-verify I-9s with expiring work authorization documents;
  • Switch to an electronic I-9 system rather than a paper-based one;
  • Purge I-9s which you are legally permitted to purge;
  • Have an outside firm conduct an internal I-9 audit to identify and remediate violations before a government audit occurs; and
  • Develop a government audit response plan and train employees thoroughly in how to respond to a surprise audit.


About The Author

Greg Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com.


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


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