Immigration - Is it time to be concerned?

The first thing employers must realize is that despite all the public outcry, the law has not changed yet. Employers are not required to be document experts, and are limited to ensuring that an I-9 Form is properly completed for every employee within three days of hire, as well as making a good faith determination regarding documents that are presented. While completion of the form itself is relatively simple, there are a host of related issues of which the employer must be aware.

Employers are prohibited by a variety of state and federal statutes from discriminating against employees and applicants based on protected classes including race, national origin, and citizenship status, in addition to other characteristics. The factors all come into play with the I-9 process. As an employer, you cannot:

• Specifically require which of the possible documents an employee can use to verify identity and work eligibility, or ask for specific ID such as a social security card;
• Verify more documents than are required by the I-9 form;
• Check with the issuing agency or other source to verify that the documents are valid;
• Make a determination that the documents presented are falsified;
• Make copies of ID used for the I-9 only for certain employees and not for others.

An important note for employers is that even though the law has not yet changed, enforcement practices of immigration status in the workplace have been stepped up. ICE has been conducting well publicized raids on a variety of employers, with a special focus on industries that have traditionally employed a high percentage of immigrants, such as agriculture, construction, hospitality, food processing, and textiles. Employers in these industries must make sure they are properly completing and retaining I-9 forms for every employee. By completing these in good faith, an employer has a defense against allegations of knowingly hiring undocumented employees who are not legally eligible to work.

Recent remarks by Michael Chertoff, the Secretary of the Department of Homeland Security, have also raised concern in the employer community. Mr. Chertoff commented regarding the No-Match letters sent by the Social Security Agency to employers. While the wording on those letters specifically states that an employer may not terminate or take other adverse action against an employee due to a No-Match letter, the Secretary’s recent comments have put employers on notice that this may soon change. He is urging Congress to pass legislation that would grant the DHS limited access to no-match data to identify employers who may be systematically employing workers whose mismatch letters should be an indication that an employee is undocumented. Given these remarks, employers who have not taken appropriate steps with mismatch letters need to implement procedures to respond appropriately to these, including obtaining a W-4 from all employees and soliciting corrected information from employees identified in mismatch letters. In addition, employers should watch for any changes in obligations regarding these.