Management Memo
By: Josie Gonzalez
In 2009, employers in all industries, small or large, must make critical decisions regarding their new hire screening techniques. Since the passage of the Immigration Reform and Control Act (IRCA) in 1986 all employers have been obliged to complete a new hire form I-9 recording identity and work authorization documents. If the documents are discovered to be fraudulent, one could always blame the government for failing to provide the tools to decipher a good green card and social security card from a $50 variety. Slowly but methodically, the government has been building a robust database, called E-Verify, which it is increasingly thrusting on employers, not only for all new hires, but also for current employees that work on federal contracts. This article will address and dispel many of the myths regarding E-Verify and related issues.
MYTH: E-Verify is an on-line tool that is entirely voluntary that enables employers to verify the legitimacy of new hire work authorization documents.
TRUTH: Increasingly, the federal government is mandating E-Verify to gain government benefits and various states are requiring that all new hires be run through E-Verify. For example:
- Effective January 15, 2009, new Federal regulations require E-Verify for certain federal contractors. Not only will federal contractors and certain subcontractors be required to use E-Verify for all new hires; they also will be required to update I-9s and use E-Verify for existing workers "directly performing" work on federal contracts. (See www.uscis.gov, pressroom 11/13/08.)
- In order to hire foreign students graduating from U.S. universities to work in STEM related jobs (Science, Technology, Engineering and Math) for 29 months after graduation, an employer must be registered in E-Verify. (See www.uscis.gov, pressroom 4/4/08 & 5/23/08.)
- New H-2A agricultural regulations for seasonal foreign farm workers permit employees to transfer to different employers without awaiting lengthy approvals - as long as the new employer is using E-Verify. (See www.uscis.gov, pressroom 12/11/08.)
- The list of states that mandate E-Verify usage for all new hires continues to grow (GA, CO, OK, AZ) while other states only mandate usage for employees working on state contracts (ID, NC, PA, MO,)
MYTH: A correctly completed I-9 form is an employer's affirmative defense to a charge of employing unauthorized workers. As long as an employer has an I-9, it won't be charged with federal immigration violations if it's discovered that the employee's documents were fraudulent.
TRUTH: While an I-9, completed in good faith, is an affirmative defense against a charge of knowingly hiring an unauthorized worker, it isn't a defense against a charge of knowingly continuing the employment of unauthorized workers. With the availability of E-Verify to screen the legitimacy of documents, ICE (Immigration and Customs Enforcement) will increasingly hold employers to a higher standard and will investigate more thoroughly when it discovers the presence of numerous unauthorized workers.
MYTH: A company is more at risk of being visited by ICE if it participates in E-Verify.
TRUTH: Although there have been instances of E-Verify companies which were raided by ICE, these companies were investigated because of widespread employee use of false identities. Nevertheless, companies must sign a Memo of Understanding when signing on for E-Verify, agreeing to share their records with ICE. Unquestionably, this does have a chilling impact on program participation. Until the government clarifies under what circumstance it shares employer records with ICE, it's unclear whether E-Verify will lead to more government intrusion.
MYTH: The E-Verify database is highly inaccurate and will result in an inability to hire lawfully authorized workers.
TRUTH: E-Verify has made program improvements to increase the reliability of its database. A small percentage of the verifications do result in a "tentative nonconfirmation," which requires the employee to follow up either with DHS or Social Security to resolve the discrepancy. The new hire remains employed until the discrepancy is resolved or there is a final nonconfirmation. Improvements include fewer referrals of newly naturalized U.S. citizens, and a photo screening tool that displays immigration document photos to decrease the likelihood of identity theft.
MYTH: We sponsor foreign nationals and often these employees don't obtain a social security card for weeks or possibly months after arrival in the U.S. I won't be able to employ these workers because a social security number is required.
TRUTH: While an I-9 must be completed within three days of hire, the E-Verify process can be delayed for work authorized employees who do not yet have a social security number. The I-9 must be annotated to indicate the reason for the delay, and the E-verification should be conducted at the first opportunity.
MYTH: We have operations in many states and in different locales. If we participate in E-Verify, we will be required to use it for all locations.
TRUTH: An employer with multiple locations has several options: It may choose to complete the E-Verify process for all hiring sites from one location; each site can conduct the verification for its own workers; or some locations may be excluded - either initially or permanently.
MYTH: E-Verify requires a minimal amount of resources and staff commitment.
TRUTH: A company that participates in E-Verify does commit resources to ensure that each E-Verify user completes an online tutorial; carefully inputs all data; and follows up on each verification through final resolution within the required time frame. A savvy employer will also ensure that those involved in the I-9 and E-Verify processes are provided with I-9 and document identification training.
MYTH: There are no fines or penalties if an employee is allowed to continue to work after receiving a final non-confirmation.
TRUTH: An employer can be fined in the range of $500-$1000 for each failure to notify DHS of continuing to employ an individual after a final nonconfirmation.
MYTH: E-Verify is 100% foolproof. If we participate we never have to worry that we employed someone who presented false documents or that there is a lapse in anyone's work authorization.
TRUTH: Identity theft remains one of the employer's biggest challenges. The photo tool is a first step in preventing identity theft but only some immigration documents are inputted and photos for driver's licenses are not available. Additionally, although an employer must update section three of the I-9 whenever work authorization expires, it isn't allowed to use E-Verify to check the validity of these documents. Overall, E-Verify is considered by many employers to be a good deterrent that will decrease the number of unauthorized workers.
Josie Gonzalez is the managing partner of Gonzalez & Harris, and has represented
employers in all aspects of immigration law since 1978. Josie is a former criminal
defense attorney, a member of the Board of Governors of the American Immigration
Lawyers Association (AILA), and a nationally recognized expert on employer I-9
compliance/criminal and civil enforcement, business visas and labor certifications
(PERM). She is a frequent guest speaker for trade, business, and Bar associations.
Josie is ranked among the top four immigration attorneys in California by Chambers
USA, in the top 5% by Southern California Super Lawyers (2004-present), and
in the Best Lawyers in America (1996-present).
========
Reprinted with the permission of the Employers Group, as published in its January
2009 CA Employer newsletter. The Employers Group is a member of the National
Association of Manufacturers (NAM) and the nation's largest and oldest nonprofit
employer association dedicated to Human Resources management. Founded in 1896,
it now represents close to 4,000 employer organizations throughout California.
www.employersgroup.com
Printable Version
|
