Immigration reform puts the burden on you

CONSTRUCTION ATTORNEY

IT MIGHT COME as a surprise to many business owners to learn that they have to comply with immigration laws, even if they have never hired a non-U.S. citizen. All companies are now required to check immigration status and keep detailed records for each employee. Failure to do so exposes the employer to fines or the loss of key employees.

A finding that an employer failed to properly verify an employee's employment eligibility may result in fines and penalties ranging from $110 to $1,100 per violation just for paperwork errors. If immigration officials find that an employer acted knowingly, the penalties can range from $275 to $11,000 per employee, according to Immigration and Nationality Act ß274A(e)(4-5).

The most commonly used document is still the Social Security Card. The government issues "no-match" letters to employers where a sufficient number of SSNs appear questionable. At the same time, employers are told that they are now "on notice" of potential violations that could lead to civil or criminal sanctions against them, and that they should not take any adverse action against the employee because of the notice, or face punishment under state and federal law.

Even if you have employees who love you and would never themselves complain, remember that the government always has the right to come in and audit you. Additionally, plenty of people are out there encouraging complaints to be filed. For example, an organization by the name of Illegal Employers.org has established a Website for reporting employers alleged to be engaged in employing unauthorized workers in California and elsewhere. The Website describes the organization as "a network of law firms, labor organizations, immigration reform advocates and others working to eliminate the incentive for illegal immigration."

I-9 form changes
The I-9 forms themselves have been, and continue to be, revised to reflect the transfer of responsibility from the old Immigration and Naturalization Service to the new U.S. Customs and Immigration Service, which is now part of the Department of Homeland Security. The most current I-9 form is dated May 31, 2005, but rumor has it that USCIS intends to revise it again before 2006 is out. The current form is available at uscis.gov/graphics/formsfee/ forms/files/i-9.pdf.

'Acceptable' proof of identity
The USCIS has changed the kinds of documents that employers may accept to establish identity and eligibility for employment (known as "List A" documents). You can't tell from reading the I-9 form itself that this back-up documentation requirement has changed, effective immediately. You only know this by reading the instructions for filling out the I-9 forms.

Other types of documents that used to be acceptable proof of employment eligibility that are no longer acceptable include:

• Certificates of Citizenship (INS Forms N-560 and 561);
• Certificates of Naturalization (INS Forms 550 and 570);
• Form I-151;
• Unexpired Re-entry Permits (INS Form I-327); and
• Unexpired Refugee Travel Documents (INS Form I-571).

One new form of acceptable proof of eligibility is the "Employment Authorization Document" (INS Form I-766). Remember that the burden will always be on the employer to assure that the documentation is true and accurate.

Employment eligibility status
An employer has three separate requirements with respect to I-9s: Initial verification; re-verification; and document retention.

Initial verification: Employers must collect I-9 forms from every employee within three days of hiring to verify identity and eligibility to work — a Social Security Card or number is not enough. The employer must examine and record the documents that prove the employee's identity and employment eligibility. The legal threshold for examining these documents is that the documents must appear to be genuine and relate to the employee. This means that employers are not liable if employees present them with false documents, as long as the employers are — and remain — unaware of the fraud.

Re-verification: Federal law also requires re-verification of employment eligibility for all hires with temporary work authorization. The re-verification must occur on or before the date that work authorization is due to expire. This is not as easy as it sounds, because while employers must re-verify eligibility on a set schedule, they cannot do so in a "discriminatory" manner that could smack of harassment — such as by asking for more information than is required.

If an employer fails to re-verify employment eligibility for workers with temporary work authorization, the government considers the employer "on notice" that the employees may not be authorized to work legally. This notice likely leads to increased penalties in the event of a government audit.

Document retention: Employers must keep the forms readily available for inspection by the USCIS but not in the employee's personnel files. These forms have to be kept on file until the latter of three years after the date of hire or one year after date of termination. In the federal Form I-9 context, routine purging of old, outdated documents is key for employers seeking to minimize liability. But employers should make sure they no longer need the documents. Purging required documents can have consequences from fines to jail time.

Susan McGreevy is a partner at Husch & Eppenberger, Kansas City, Mo., tel. 816/ 421- 4800, e-mail to [email protected]