The Department of Homeland Security (DHS) is expected to re-issue rules requiring employers to check on employees' identities if they receive letters from DHS notifying them that a worker's Social Security numbers does not match the government's database. The rules, initially issued last August, were challenged in court, and have been modified to allow employers more time to resolve problems. And last week the federal government increased fines on businesses that knowingly hire illegal immigrants to $374 to $16,000 per violation up from a range of $275 to $11,000. Employers should also note that the new I-9 form issued by DHS changes some of the documents considered acceptable for work authorization.
States, with Arizona in the lead, are also going after employers for hiring practices, threatening to revoke business licenses if employers do not make a serious effort to verify their workers' identities. Last week an appeals court in Arizona upheld the state's right to revoke a business license and prosecutors there have been given the green light to go after employers who knowingly hire illegal immigrants, CBS News reports.
Arizona, along with Georgia, Colorado, Oklahoma and Missouri now require that employers use the federal E-Verify system, a web-based system that combines databases of the U.S. Citizenship and Immigration Services (USCIS) and the Social Security Administration (SSA). Legislation is pending in13 other states to require public or private employers to use the system, the Christian Science Monitor reports.
Employers are confused about the requirements of the DHS rule relating to the no match letters, according to Carl Borden, a California Farm Bureau labor attorney. In a speech at the World Ag Expo Borden told farm employers that two misperceptions about the DHS rule regarding the no match letters have emerged. Many employers believe that that if the receive no match letters are legally bound to clear up discrepancies, and if they couldn't, they had to fire employees. Borden said neither one is true, the Capital Press Agriculture News reports.
"DHS has no independent authority under a statute or otherwise to require an employer to take steps to clear up a no-match discrepancy," Borden said. "The mere fact that you have taken no action to clear up a no-match letter does not, in and of itself, cause you legal liability. You have not broken the law."
Nevertheless the receipt of a letter can mean the employer has "constructive" knowledge of the situation, Borden acknowledged, according to Capital Press, and a reason for federal authorities to prosecute employers, and he recommended that employers file I-9 forms according to current statute.
Employers have been required to verify the identity and authorization of every new hire by completing of Form I-9 since 1987 under the Immigration Reform and Control Act. The new I-9, which can be found on the USCIS Web site, should be used for workers hired after December 26, 2007. Changes have been made to the lists of documents an employee may submit for work authorization according to Victoria Donati, Michael Hughes and Jason Kim, writing for Professional Roofing Magazine. Employers can be fined for continuing to use the old form.
Using the new I-9 form for new employees is one step in preparing employee records for federal scrutiny say Donati, Hughes and Kim, but employers should also establish uniform procedures to follow if they receive a no match letter. Failure to act could result in a finding of "constructive knowledge."
The DHS rules will likely involve a three-step response to a no match letter,. Employers must first determine that the discrepancy is not the result of a typographical or other clerical error. If it is a clerical error, the employer should simply notify the Social Security Administration.
If the no match is not the result of a clerical error, the employer should ask the employee to confirm the name and Social Security number in the company's records are correct. If there is an error in the records, the employer should make changes in the I-9 and notify the SSA.
If that is not the case, the employee should be allowed to correct the matter. The original DHS rule required the employee to resolve the problem within 90 days, but the new rule may extend that period to 180 days. The employer may attempt to verify the employee's work authorization using a modified I-9 procedure using documents listed on the I-9 that do not use the Social Security number or that do not have a photograph. If this cannot be done the employer should consider terminating the employee.