U.S. Immigration Law

In March 2010, U.S. Immigration and Customs Enforcement (ICE) announced that it was issuing Notices of Inspection to 180 businesses in Louisiana, Mississippi, Alabama, Arkansas, and Tennessee. The notices alerted business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations.

U.S. law firms and their clients are subject to such federal scrutiny. This article outlines some of the key components of federal law related to employer duties regarding immigration compliance.

U.S. Immigration and Employer Compliance

A host of federal agencies has responsibility for regulating U.S. immigration law. These agencies include the U.S. Department of Homeland Security (U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement); U.S. Department of State (Bureau of Consular Affairs); and U.S. Department of Labor (Employment and Training Administration), among others.

Notwithstanding this bureaucracy, a large portion of responsibility for enforcing U.S. immigration law has been shifted to U.S. employers, specifically by way of two main pieces of federal legislation (and a mishmash of state laws and local ordinances): IRCA (“Immigration Reform and Control Act of 1986″); and IIRIRA (“Illegal Immigration Reform and Immigrant Responsibility Act of 1996″).

Form I-9 Compliance

Pursuant to IRCA, employers are required to verify the identity and work authorization status of every employee hired after 1986. The mechanism for compliance is the I-9 Employment Verification Form. The Form I-9 process must start on the day an individual commences employment. On that day, the employee must complete Section 1 of Form I-9. The employee must then provide supporting documents evidencing his/her identity and employment eligibility within three days of the date of hire, at which time the employer must complete Sections 2 and 3 of Form I-9. If the employee does not present such supporting documents within three days of his date of hire, he must be removed from payroll.

It is not recommended to obtain Form I-9 before the first day of employment. Employers should only request identity and employment eligibility documentation from an individual after the position has been offered and accepted by that individual to avoid discrimination claims if the job is not offered.

Employers must keep Forms I-9 for all current employees and for at least three years from the date of hire or for one year from an employee's date of termination, whichever is longer. Retention of copies of supporting documentation is voluntary; however, consistency is recommended.

The E-Verify System

Formerly known as the Basic Pilot Program, the E-Verify System was originally mandated by IIRIRA. It is an Internet-based system administered by USCIS. It allows employers to electronically verify employment eligibility of all newly hired employees. Based upon information provided on an individual's Form I-9, E-Verify electronically checks that information against records in the U.S. Department of Homeland Security (DHS) database (containing approximately 60 million records) and the U.S. Social Security Administration (SSA) database (containing approximately 425 million records). Participation in E-Verify is voluntary and is not a “safe harbor.“

Using E-Verify

To use E-Verify, an employer must first enroll in the program. In doing so, the employer will be asked to provide basic contact information and execute a Memorandum of Understanding (MOU) that provides the terms of agreement between the employer, SSA, and DHS.

Under the MOU, an employer agrees, among others things, to: 1) display notices supplied by DHS; 2) provide DHS with the names and contact info of the employer representatives responsible for E-Verify; 3) comply with the E-Verify manual supplied by DHS; 4) ensure that its representatives complete an E-Verify tutorial before attempting to file a E-Verify case; 5) comply with I-9 rules; 6) notify DHS of any employee it continues to employ after receipt of a final non-confirmation E-Verify result; 7) refrain from using E-Verify to engage in pre-employment screening; 8) refrain from using E-Verify to selectively check only some employees; 9) refrain from using E-Verify to re-verify employees with Form I-9s requiring reverification; 10) refrain from running existing employees through E-Verify; 11) follow rules regarding how to respond to a tentative non-confirmation E-Verify result; 12) refrain from terminating an employee until it receives a final non-confirmation E-Verify result; 13) comply with U.S. Immigration & Nationality Act (INA) anti-discrimination rules; 14) safeguard information provided to and received from E-Verify under subject of criminal penalties; and 15) permit DHS/SSA to make periodic visits to the employer's worksite to review E-Verify records.

The earliest an employer may initiate an E-Verify query is after an individual accepts an offer of employment and after the employee and employer complete Form I-9. For newly hired employees, the employer must initiate an E-Verify query no later than three days after the new employee starts work for pay. Normally, response to an initial E-Verify query is received by the employer within seconds.

General Caveats

As general caveats, an employer may not use E-Verify to: 1) pre-screen applicants, delay training and/or the actual start date if a tentative non-confirmation E-Verify result is received; 2) accelerate the start date if employment authorization is confirmed by E-Verify, or 3) take any adverse employment action unless and until a final non-confirmation E-Verify result is received. In all instances, it is important to be consistent.

An employer that verifies work authorization under E-Verify establishes a “rebuttable presumption” that it has not knowingly hired an unauthorized alien. That said, participation in E-Verify does not provide a “safe harbor” from worksite enforcement.

Employers are required to post a notice provided by DHS indicating the company's participation in E-Verify program. Employers are also required to post an anti-discrimination notice issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices.

Participation in the E-Verify system does pose certain risks to employers. Most significantly, USCIS shares information from E-Verify with U.S. Customs and Immigration Enforcement (ICE). Information voluntarily submitted by an employer via E-Verify can be used by ICE against that employer in an enforcement action. Of additional risk, an employer will have a “rebuttable presumption” that it knowingly employs an individual ineligible to work if it continues to employ that individual after receiving a final non-confirmation E-Verify result. If the employer believes the E-Verify result is incorrect, the employer will still have a strong incentive to terminate the employee anyway in order to minimize risk. Of added concern, employers participating in E-Verify must allow DHS/SSA to visit worksites to review E-Verify records and other employment records related to E-Verify. An employer who wants to stop using E-Verify must continue using program for 30 days after giving written notice to USCIS.

The Federal Contractor Rule

On June 6, 2008, President George W. Bush amended Executive Order 12989 in order to direct all federal departments and agencies to require contractors, as a condition of future federal contracting, to agree to use an electronic employment eligibility verification system ' designated by the Secretary of the DHS ' to verify the employment eligibility of all persons hired during the contract term and all persons performing work within the U.S. on the federal contract.

On June 9, 2008, former DHS Secretary Chertoff announced designation of the E-Verify system as the electronic employment eligibility verification system to be used by Federal contractors, pursuant to Executive Order 12989, as amended. On June 12, 2008, a proposed rule was published in the Federal Register regarding the amendment of the Federal Acquisition Regulation (FAR) to require certain contractors and subcontractors to use the USCIS E-Verify system as a means of verifying that certain employees are eligible to work in the U.S. This rule has been finalized and, after significant litigation, and became effective on Sept. 8, 2009.

The FAR now extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. Applicable federal contracts awarded and solicitations issued after Sept. 8, 2009 must include a clause committing government contractors to use E-Verify.

Companies awarded a contract with the E-Verify clause on or after Sept. 8, 2009 will be required to enroll in E-Verify within 30 days of the contract award date. E-Verify must be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts, are legally authorized to work in the United States.

State and Local Immigration Compliance Laws

Adding an additional layer of complexity to immigration compliance, individual states and, in some instances, counties and municipalities are enacting their own immigration laws. By way of example, Georgia enacted the Georgia Security and Immigration Compliance Act of 2006 (“the Act”). The Act provides that all employers that contract with the State of Georgia must register and participate in E-Verify to verify the status of newly hired employees.

Employers must analyze whether state and local laws exist which place additional requirements upon their operations related to immigration compliance.

Civil and Criminal Liability Related to Immigration Non-Compliance

Substantial civil and criminal liability may arise as a result of immigration and Form I-9 noncompliance. The following describes the scope of such potential liability:

Employers who fail to comply with the I-9 verification requirements are subject to civil penalties of not less than $100 and not more than $1,000 for each individual with respect to whom a violation occurred before March 15, 1999, and not less than $110 and not more than $1,100 for each individual with respect to whom a violation occurred on or after March 15, 1999. There exists a “good faith” provision in applicable law, which allows employers to correct certain I-9 verification errors and mitigate potential civil liability.

It is an unfair immigration-related employment practice for an employer to discriminate against any individual (other than an unauthorized alien) with respect to the hiring of that individual for employment (or the discharging of the individual from employment) because of that individual's national origin or citizenship status. Employers in violation of this requirement are subject to civil penalties of $275 to $2,200 for each individual discriminated against before March 27, 2008; and not less than $375 to $3,200 for each individual discriminated against on or after March 27, 2008. For subsequent violations, employers are subject to civil penalties of up to $16,000 for each individual discriminated against.

It is unlawful for an employer to hire and/or to continue to employ an individual knowing that that individual does not have U.S. employment authorization. Employers in violation of this requirement are subject to civil penalties of $275 to $2,200 for each unauthorized individual with respect to whom there was a violation before March 27, 2008; and not less than $375 to $3,200 for each unauthorized individual with respect to whom there was a violation on or after March 27, 2008. For subsequent violations, employers knowingly hiring and/or continuing to employ individuals without U.S. employment authorization are subject to civil penalties of up to $16,000 for each unauthorized individual.

It is a felony to knowingly or in reckless disregard of the fact that an alien came to, entered, or remains in the U.S. in violation of the law to conceal, harbor, or shield from detection such an alien. If harboring is “done for the purpose of commercial advantage or private financial gain,” the maximum prison term increases from five to ten years. Any person who during any 12-month period knowingly hires for employment at least 10 individuals, with actual knowledge that the individuals are unauthorized aliens, will be fined or imprisoned for not more than five years, or both.

Immigration Compliance 'Best Practices'

Given the scope of potential liability, it is recommended that employers pursue the following “best practices,” among others, related to immigration compliance:

• Conduct regular internal audits of Form I-9 files; seek to identify patterns of violations requiring remediation; such audits should be conducted by (or under the supervision of) an attorney experienced in such matters.
• Establish a regular training program for human resource professionals regarding immigration compliance issues, including Form I-9 compliance.
• Establish uniform policies regarding the completion and retention of Forms I-9.
• Establish a Form I-9 re-verification tickler system and ensure timely re-verification of individual Forms I-9, as necessary.
• Centralize the Form I-9 recordkeeping process and purge old records for which retention is no longer required.
• Establish a process for human resource professionals to check quickly with counsel regarding problems encountered in the Form I-9 verification process.
• Establish a back-up system to ensure timely compliance with Form I-9 rules when the human resource professional that normally ensures compliance is out of the office.

Teri A. Simmons is a Partner with Arnall Golden Gregory, LLP, Atlanta, where she chairs the firm's International Business and Immigration Teams. She may be reached at 404-873-8612. E-mail: [email protected]. Stephen P. Pocalyko is Of Counsel in the same office, and a member of the International Business and Immigration Teams. Mr. Pocalyko may be reached at 404-873-8592. E-mail: [email protected].

In March 2010, U.S. Immigration and Customs Enforcement (ICE) announced that it was issuing Notices of Inspection to 180 businesses in Louisiana, Mississippi, Alabama, Arkansas, and Tennessee. The notices alerted business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations.

U.S. law firms and their clients are subject to such federal scrutiny. This article outlines some of the key components of federal law related to employer duties regarding immigration compliance.

U.S. Immigration and Employer Compliance

A host of federal agencies has responsibility for regulating U.S. immigration law. These agencies include the U.S. Department of Homeland Security (U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement); U.S. Department of State (Bureau of Consular Affairs); and U.S. Department of Labor (Employment and Training Administration), among others.

Notwithstanding this bureaucracy, a large portion of responsibility for enforcing U.S. immigration law has been shifted to U.S. employers, specifically by way of two main pieces of federal legislation (and a mishmash of state laws and local ordinances): IRCA (“Immigration Reform and Control Act of 1986″); and IIRIRA (“Illegal Immigration Reform and Immigrant Responsibility Act of 1996″).

Form I-9 Compliance

Pursuant to IRCA, employers are required to verify the identity and work authorization status of every employee hired after 1986. The mechanism for compliance is the I-9 Employment Verification Form. The Form I-9 process must start on the day an individual commences employment. On that day, the employee must complete Section 1 of Form I-9. The employee must then provide supporting documents evidencing his/her identity and employment eligibility within three days of the date of hire, at which time the employer must complete Sections 2 and 3 of Form I-9. If the employee does not present such supporting documents within three days of his date of hire, he must be removed from payroll.

It is not recommended to obtain Form I-9 before the first day of employment. Employers should only request identity and employment eligibility documentation from an individual after the position has been offered and accepted by that individual to avoid discrimination claims if the job is not offered.

Employers must keep Forms I-9 for all current employees and for at least three years from the date of hire or for one year from an employee's date of termination, whichever is longer. Retention of copies of supporting documentation is voluntary; however, consistency is recommended.

The E-Verify System

Formerly known as the Basic Pilot Program, the E-Verify System was originally mandated by IIRIRA. It is an Internet-based system administered by USCIS. It allows employers to electronically verify employment eligibility of all newly hired employees. Based upon information provided on an individual's Form I-9, E-Verify electronically checks that information against records in the U.S. Department of Homeland Security (DHS) database (containing approximately 60 million records) and the U.S. Social Security Administration (SSA) database (containing approximately 425 million records). Participation in E-Verify is voluntary and is not a “safe harbor.“

Using E-Verify

To use E-Verify, an employer must first enroll in the program. In doing so, the employer will be asked to provide basic contact information and execute a Memorandum of Understanding (MOU) that provides the terms of agreement between the employer, SSA, and DHS.

Under the MOU, an employer agrees, among others things, to: 1) display notices supplied by DHS; 2) provide DHS with the names and contact info of the employer representatives responsible for E-Verify; 3) comply with the E-Verify manual supplied by DHS; 4) ensure that its representatives complete an E-Verify tutorial before attempting to file a E-Verify case; 5) comply with I-9 rules; 6) notify DHS of any employee it continues to employ after receipt of a final non-confirmation E-Verify result; 7) refrain from using E-Verify to engage in pre-employment screening; 8) refrain from using E-Verify to selectively check only some employees; 9) refrain from using E-Verify to re-verify employees with Form I-9s requiring reverification; 10) refrain from running existing employees through E-Verify; 11) follow rules regarding how to respond to a tentative non-confirmation E-Verify result; 12) refrain from terminating an employee until it receives a final non-confirmation E-Verify result; 13) comply with U.S. Immigration & Nationality Act (INA) anti-discrimination rules; 14) safeguard information provided to and received from E-Verify under subject of criminal penalties; and 15) permit DHS/SSA to make periodic visits to the employer's worksite to review E-Verify records.

The earliest an employer may initiate an E-Verify query is after an individual accepts an offer of employment and after the employee and employer complete Form I-9. For newly hired employees, the employer must initiate an E-Verify query no later than three days after the new employee starts work for pay. Normally, response to an initial E-Verify query is received by the employer within seconds.

General Caveats

As general caveats, an employer may not use E-Verify to: 1) pre-screen applicants, delay training and/or the actual start date if a tentative non-confirmation E-Verify result is received; 2) accelerate the start date if employment authorization is confirmed by E-Verify, or 3) take any adverse employment action unless and until a final non-confirmation E-Verify result is received. In all instances, it is important to be consistent.

An employer that verifies work authorization under E-Verify establishes a “rebuttable presumption” that it has not knowingly hired an unauthorized alien. That said, participation in E-Verify does not provide a “safe harbor” from worksite enforcement.

Employers are required to post a notice provided by DHS indicating the company's participation in E-Verify program. Employers are also required to post an anti-discrimination notice issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices.

Participation in the E-Verify system does pose certain risks to employers. Most significantly, USCIS shares information from E-Verify with U.S. Customs and Immigration Enforcement (ICE). Information voluntarily submitted by an employer via E-Verify can be used by ICE against that employer in an enforcement action. Of additional risk, an employer will have a “rebuttable presumption” that it knowingly employs an individual ineligible to work if it continues to employ that individual after receiving a final non-confirmation E-Verify result. If the employer believes the E-Verify result is incorrect, the employer will still have a strong incentive to terminate the employee anyway in order to minimize risk. Of added concern, employers participating in E-Verify must allow DHS/SSA to visit worksites to review E-Verify records and other employment records related to E-Verify. An employer who wants to stop using E-Verify must continue using program for 30 days after giving written notice to USCIS.

The Federal Contractor Rule

On June 6, 2008, President George W. Bush amended Executive Order 12989 in order to direct all federal departments and agencies to require contractors, as a condition of future federal contracting, to agree to use an electronic employment eligibility verification system ' designated by the Secretary of the DHS ' to verify the employment eligibility of all persons hired during the contract term and all persons performing work within the U.S. on the federal contract.

On June 9, 2008, former DHS Secretary Chertoff announced designation of the E-Verify system as the electronic employment eligibility verification system to be used by Federal contractors, pursuant to Executive Order 12989, as amended. On June 12, 2008, a proposed rule was published in the Federal Register regarding the amendment of the Federal Acquisition Regulation (FAR) to require certain contractors and subcontractors to use the USCIS E-Verify system as a means of verifying that certain employees are eligible to work in the U.S. This rule has been finalized and, after significant litigation, and became effective on Sept. 8, 2009.

The FAR now extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. Applicable federal contracts awarded and solicitations issued after Sept. 8, 2009 must include a clause committing government contractors to use E-Verify.

Companies awarded a contract with the E-Verify clause on or after Sept. 8, 2009 will be required to enroll in E-Verify within 30 days of the contract award date. E-Verify must be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts, are legally authorized to work in the United States.

State and Local Immigration Compliance Laws

Adding an additional layer of complexity to immigration compliance, individual states and, in some instances, counties and municipalities are enacting their own immigration laws. By way of example, Georgia enacted the Georgia Security and Immigration Compliance Act of 2006 (“the Act”). The Act provides that all employers that contract with the State of Georgia must register and participate in E-Verify to verify the status of newly hired employees.

Employers must analyze whether state and local laws exist which place additional requirements upon their operations related to immigration compliance.

Civil and Criminal Liability Related to Immigration Non-Compliance

Substantial civil and criminal liability may arise as a result of immigration and Form I-9 noncompliance. The following describes the scope of such potential liability:

Employers who fail to comply with the I-9 verification requirements are subject to civil penalties of not less than $100 and not more than $1,000 for each individual with respect to whom a violation occurred before March 15, 1999, and not less than $110 and not more than $1,100 for each individual with respect to whom a violation occurred on or after March 15, 1999. There exists a “good faith” provision in applicable law, which allows employers to correct certain I-9 verification errors and mitigate potential civil liability.

It is an unfair immigration-related employment practice for an employer to discriminate against any individual (other than an unauthorized alien) with respect to the hiring of that individual for employment (or the discharging of the individual from employment) because of that individual's national origin or citizenship status. Employers in violation of this requirement are subject to civil penalties of $275 to $2,200 for each individual discriminated against before March 27, 2008; and not less than $375 to $3,200 for each individual discriminated against on or after March 27, 2008. For subsequent violations, employers are subject to civil penalties of up to $16,000 for each individual discriminated against.

It is unlawful for an employer to hire and/or to continue to employ an individual knowing that that individual does not have U.S. employment authorization. Employers in violation of this requirement are subject to civil penalties of $275 to $2,200 for each unauthorized individual with respect to whom there was a violation before March 27, 2008; and not less than $375 to $3,200 for each unauthorized individual with respect to whom there was a violation on or after March 27, 2008. For subsequent violations, employers knowingly hiring and/or continuing to employ individuals without U.S. employment authorization are subject to civil penalties of up to $16,000 for each unauthorized individual.

It is a felony to knowingly or in reckless disregard of the fact that an alien came to, entered, or remains in the U.S. in violation of the law to conceal, harbor, or shield from detection such an alien. If harboring is “done for the purpose of commercial advantage or private financial gain,” the maximum prison term increases from five to ten years. Any person who during any 12-month period knowingly hires for employment at least 10 individuals, with actual knowledge that the individuals are unauthorized aliens, will be fined or imprisoned for not more than five years, or both.

Immigration Compliance 'Best Practices'

Given the scope of potential liability, it is recommended that employers pursue the following “best practices,” among others, related to immigration compliance:

• Conduct regular internal audits of Form I-9 files; seek to identify patterns of violations requiring remediation; such audits should be conducted by (or under the supervision of) an attorney experienced in such matters.
• Establish a regular training program for human resource professionals regarding immigration compliance issues, including Form I-9 compliance.
• Establish uniform policies regarding the completion and retention of Forms I-9.
• Establish a Form I-9 re-verification tickler system and ensure timely re-verification of individual Forms I-9, as necessary.
• Centralize the Form I-9 recordkeeping process and purge old records for which retention is no longer required.
• Establish a process for human resource professionals to check quickly with counsel regarding problems encountered in the Form I-9 verification process.
• Establish a back-up system to ensure timely compliance with Form I-9 rules when the human resource professional that normally ensures compliance is out of the office.

Teri A. Simmons is a Partner with Arnall Golden Gregory, LLP, Atlanta, where she chairs the firm's International Business and Immigration Teams. She may be reached at 404-873-8612. E-mail: [email protected]. Stephen P. Pocalyko is Of Counsel in the same office, and a member of the International Business and Immigration Teams. Mr. Pocalyko may be reached at 404-873-8592. E-mail: [email protected].