Carefully comply with workplace immigration rules

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By Debra Susca

Freelance writer in Portland, Conn.

Know and scrupulously follow workplace immigration laws. That still is sound advice despite a recent court decision barring the U.S. Department of Homeland Security (DHS) from implementing stringent new regulations directed at employers. Given today’s heated and swiftly changing environment of immigration law enforcement, you could still run into trouble if you don’t have correct, up-to-date documentation on file for all of your employees.

In its wider effort to enforce the nation’s immigration laws, the federal government has begun to crack down on employers of “undocumented” workers. The DHS is expanding its criminal investigations of employers who knowingly hire large numbers of illegal workers and increasing civil fines by 25% — as high as $11,000 per offense.

The DHS also recently attempted to impose a new rule requiring employers to follow more stringent procedures if they receive a “no match” letter from the Social Security Administration (SSA). No-match letters are routinely sent to alert employers when employees’ W-2 forms contain names and Social Security numbers that don’t match those on record with the SSA. According to U.S. Immigration and Customs Enforcement, out of approximately 250 million wage reports the SSA receives each year, some 4% belong to employees whose names and Social Security numbers don’t match the SSA’s database.

The new DHS rule was set to go into effect Sept. 14 with the mailing of 141,000 no-match letters concerning approximately 8 million employees. But it was contested in federal court in San Francisco by the American Civil Liberties Union, the AFL-CIO and several business groups, including the U.S. Chamber of Commerce and the National Federation of Independent Business (NFIB) Legal Foundation. On Oct. 10, the court ruled that DHS could not go forward with its proposal because it would result in irreparable harm to innocent workers and employers.

The DHS is expected to appeal the decision.

Given the immigration tumult, employers should take a hard look at their hiring practices and record keeping, says Mark Soycher, CBIA counsel. “Employers should be vigilant in completing required documents and dealing quickly with any discrepancies that surface,” he says. “Employers are not expected to be experts in fraud detection, but they are expected to assess whether documents reasonably appear to be genuine.”

And certainly if you suspect that one of your employees is not legally authorized to work in the United States, you should take appropriate action, says Megan Naughton, partner at Robinson & Cole LLP. She says, “The [enforcement] climate is changing,” as evidenced by DHS’ attempt to impose the no-match rule as well as by federal raids in Connecticut over the last year to round up illegal day laborers and punish their employers.

“If you have a suspicion about a worker’s identity or work authorization, you need to pay attention to it. Go back [to your records] and look carefully at the documents they’ve presented,” Naughton says.

What you should do

To protect your company and your employees, you should:

Have on file for every worker a completed and signed I-9 (“Employment Eligibility Verification”) form.

Require job applicants to provide appropriate documents proving their identity and employment eligibility as listed on Page 3 of the I-9 form.

Closely examine identity and employment eligibility documents presented by applicants to assess their authenticity.

Set up a tickler file to remind you to reverify a worker’s employment eligibility status if his or her employment documents contain a work authorization expiration date.

Have new hires correctly complete a form W-4 for tax and Social Security information.

Resolve discrepancies quickly if you do receive a no-match letter. Check first to see if the discrepancy is a clerical error, and if not, immediately inform the employee of the discrepancy and encourage him or her to contact the SSA to correct any problem.

“Employers didn’t always pay attention to the no-match letters, because there were too many false positives,” says Colin D. Munro, partner at McCarter & English LLP. He says the SSA’s database is considered only 90% accurate, resulting in millions of mismatches — sometimes because of name misspellings (particularly with uncommon names) or unreported name changes resulting from marriage or divorce. “But employers are starting to take notice [of no-match letters], given all the press coverage on this.”

Soycher reminds employers that DHS, in its work to enforce immigration laws, will hold employers accountable for any lack of proper documentation. “Employers need to be very careful in monitoring I-9 compliance and make sure that they’re crossing all their T’s and dotting all their I’s, as well as dealing quickly with any discrepancies that surface.”

New ‘no match’ regs are on hold, but you still must