Remember the employee must complete
Section 1 on the first day he or she works
for pay, not a day sooner. The employer
must ensure that the information listed
is clear and legible. The employee must
then be given a list of documents he
or she may present for verification of
identity, authorization to work, or both.
The employer must never ask for a
specific document.
By day three, the employer (through a
manager or human resources profession-
al) must review the documents presented
and complete Section 2. Afterwards, the
I-9 is simply maintained on file with the
employer. For a variety of reasons, busi-
nesses should keep the I-9s in a separate
file or binder from the personnel file for
the employee.
One great resource for I-9 procedures
is the M-274, Handbook for Employers,
available for download, along with the I-9
form, at www.uscis.gov.
Social Security no-match
Procedures
duty to verify against the duty not to dis-
criminate, companies should have writ-
ten policies in the employee handbook to
ensure uniform procedures. The policy
should include a clearly outlined proce-
dure in the event the employer receives
notice from the Social Security Adminis-
tration that the employee's name does not
match his or her Social Security number.
If an employer reacts too strongly, or in a
non-uniform manner, the response could
be deemed discriminatory.
States are increasingly involved in
the immigration enforcement game. For
instance, E-Verify is now mandatory
in some states for certain employers.
E-Verify is an Internet-based system that
boasts "instant" ability to verify an em-
ployee's eligibility. In fact, the program
agency records to determine if a match
exists.
E-Verify is a good option for employ-
ers who wish to go the extra mile. The
speed of verification is greatly increased;
however, the results are subject to error.
Consequently, employers who utilize the
program must still maintain a written,
uniform procedure for responding to non-
confirmation results.
than them
firm to conduct yearly audits of I-9 files,
and respond quickly to any recommenda-
tions in the audit report. The government
will consider these audits as evidence
of the employer's "good faith" efforts at
compliance. As such, managers should
be regularly briefed by immigration
counsel regarding local and federal
changes to law and procedure.
Investigator Visits your office
an investigating official from the U.S.
Department of Labor or from the U.S.
Department of Homeland Security (DHS)
sub-agencies. These visits can occur
without prior warning. Sometimes the
official is investigating possible fraud in
employment-based immigration applica-
tions, such as an H-1B visa for foreign
skilled workers. Other times, DHS may
be interested in conducting an audit of
the company's I-9 forms.
A manager should always politely
request to view the agent's identification
and obtain a business card. The company
may request an attorney's presence.
workplace Is raided
An immigration raid indicates that the
United States government has targeted
an employer for criminal activity, and
ployed a large number of undocumented
immigrants. A fraudulent document
scheme may have taken place on-site,
and the company management may have
been completely unaware of it. By the
time a raid occurs, the company has
been under investigation for a protracted
period of time.
Anyone within a company, especially
anyone involved with hiring, can be
implicated criminally for immigration
violations. A lower level manager may be
targeted by federal agents hoping to gain
information against higher level manag-
ers and owners.
In the event of a raid, the employer
should obtain the search warrant and fax
or email it to counsel. At the outset, any
illegal employees likely will abscond.
The employer should never assist them
in any way, but allow law enforcement to
handle such issues.
At that time, the agents will also
attempt to interview individuals. No one
is obligated to engage in such an inter-
view, and any discussions with agents
should wait until an attorney can be
present. The risk of not having counsel
present is the inadvertent disclosure of
incriminating information. These unpro-
tected statements and the information
derived from them may be used to bolster
the prosecution's case.
Audits and raids are not entirely pre-
ventable, but vigilance minimizes busi-
ness owner/manager culpability for any
issues that may arise. Take time to revisit
your company's immigration compliance.
Carefully crafted policies and procedures
bring peace of mind and enable employ-
ers to worry about the most important
things the business of The Business.