An Overview of the Current State of the New Immigration Worksite Enforcement Measures

Overview
In the absence of any meaningful new immigration legislation from Congress, the Department of Homeland Security (DHS) is proceeding with new enforcement actions aimed at employers as well as unauthorized workers. DHS is now armed with new and readily available shared information gathered from Federal agencies including the IRS, Social Security Administration, and the Department of State, as well as state bureaus including the Department of Motor Vehicles and local law enforcement agencies. No employer is immune from worksite enforcement and many of the “safe-harbors” previously relied on by employers and Human Resources personnel are no longer available.

DHS has established several new programs to aid its enforcement effort many of which put the burden of enforcement squarely on employers. While the government’s comprehensive enforcement strategy was initially unveiled in April 2006, DHS delayed much of the implementation pending the immigration debate in Congress. Now that immigration reform legislation has died in the Senate, DHS and their enforcement arm, US Immigration and Customs Enforcement (ICE), are moving quickly to utilize the new measures.

While some of the most onerous measures have been stalled by litigation in both state and Federal courts, employers should familiarize themselves with the new rules, deadlines, and potential for liability particularly with regard to the new Employment Eligibility Verification Form, the I-9.

New I-9 Forms
In November 2007 the DHS announced the issuance of a revised Form I-9 Employment Eligibility Verification Form, which must be used by all employers to verify the identity and employment authorization of all employees. The new form revises the list of acceptable documents which can be used for verification. Unacceptable documents -- previously allowed but which lack security protections against fraud are also included. Effective December 26, 2007 employers must use the new form (the form is dated June 5, 2007) for all new hires and to re-verify expiring employment authorization. Employers who fail to use the new form as required may be subject to civil and criminal fines and penalties depending on the number of offenses and whether a pattern and practice of violations has occurred. Fines range from $250 to $11,000 per unauthorized worker. Criminal penalties for a pattern and practice of violations include imprisonment for up to 6 months. The new forms and Employers Handbook are available at the U.S. Citizenship and Immigration Services’ website: http://www.uscis.gov

No-Match Letters
One of the most controversial new enforcement policies uses Social Security numbers to identify suspected unauthorized workers. The Social Security Administration annually reviews W-2 forms and credits social security earnings to workers. If the Social Security Number (SSN) on the W-2 form does not match SSA records, the worker’s social security earnings go into a suspense file while the discrepancies are resolved. SSA routinely sends out correction requests to employers commonly referred to as “no-match” letters. While the majority of the discrepancies are simple clerical errors relating to native-born US citizens, many of the miss-matches are caused by the use of a false SSN or a number assigned to someone else. The ICE counterpart to the “no-match” letter is referred to as “A Notice of Suspect Documents” issued pursuant to an I-9 inspection. Typically ICE conducts these inspections either randomly or in response to a complaint or tip. ICE can obtain a search warrant to inspect a worksite, employees, and records without prior notice.

While the implementation of the new rules has been temporarily blocked by a Federal Court, the new procedures show the enforcement strategy of DHS and ICE and the government’s interpretation of what constitutes constructive and actual knowledge of unauthorized employment. In the past the SSA “no match” letters did not mandate specific action on the part of employers and over the years SSA took steps to ameliorate the negative implications of the letters. Employers were urged to present the letters to employees simply to inform them of the discrepancy. The employer was not deemed to have constructive knowledge of illegal status based solely on the “no-match” letters. In fact, employers who dismissed workers on the basis of a “no match” letter could be liable for violating Federal anti-discrimination laws.

Contrast this with the new DHS “no-match” rules that hold employers liable if they fail to take specified steps within 90 days of receipt of a “no match” letter. By receiving a “no-match” letter the employer is deemed to have “constructive knowledge” of unauthorized employment unless specific “safe-harbor” procedures had been followed. The employer is expected to examine records promptly to determine if an error has occurred, and must take corrective action and inform the relevant agencies. ICE would consider a response reasonable if it occurs within 30 days of receipt of the “no-match” letter. If no clerical error is apparent, the “reasonable” employer must contact the employee to determine if the discrepancy can be corrected. If it cannot be corrected, the employer must instruct the employee to contact SSA to resolve the issue. The discrepancy will not be considered resolved until the employer verifies with either SSA or DHS that the Social Security Number is correct or that the employee has work authorization, at which point a new I-9 Form must be completed. Barring resolution of the SSN discrepancy, employers must take steps to terminate the employee or risk a finding by DHS that the employer had constructive knowledge that the employee was an unauthorized alien, and a determination that the employer is in violation of INA 274(a)(2) which prohibits the employment of unauthorized workers and requires employment eligibility verification.

A lawsuit brought in Federal court by the AFL-CIO, ACLU, and NILC to block implementation of the “no-match” rules charges that the SSA database is flawed, and that enforcement requirements will result in the firing of countless authorized workers and discrimination against workers who appear “foreign.” After the Court extended an order temporarily blocking implementation of the “no-match” rules in November, DHS requested that the lawsuit be placed on hold until March 2008 to allow the government to revise its rules governing this area.

E-Verify
The E-Verify program is an Internet-based system operated by DHS which allows employers to electronically verify the employment eligibility of employees. DHS requires approximately 200,000 Federal contractors and vendors to use E-Verify and is also seeking voluntary partnerships with individual states to share Department of Motor Vehicles photos and records with E-Verify. This expansion of record sharing has been criticized based on privacy concerns and the potential for creating new erroneous databases of identity information. DHS is encouraging states to adopt mandatory use of E-Verify and intends to bolster the program by expanding the data sources checked by the system, including cross-checks of visa and passport information. The E-Verify program is currently being challenged in various states including Illinois based on violations of the right to privacy in the workplace.

State and Local Law Enforcement
DHS is expanding existing programs and training hundreds of state and local law enforcement officers to address illegal immigration in local communities. These measures include a broad array of enforcement tools and greater use of ICE programs.

Conclusion
The affects of these new enforcement measures and their impact on the workplace and the US economy remain to be seen as litigation proceeds and refinements are adopted. Regardless of which programs survive scrutiny, absent new legislation it is clear that DHS will continue to expand and intensify its enforcement efforts. It is increasingly apparent that meaningful and comprehensive legislation is needed to help US employers comply with federal regulations and stay competitive, as well as to protect the civil rights of US workers.