Recently, many restaurant owners were arrested on criminal charges of knowingly hiring illegal aliens. The criminal investigation revealed that many of these employees have not been required to complete any paperwork or provide any documentation in order to work at the restaurants. What are the employers' liabilities when an employee presents a fake documentation to comply with I-9 procedures and later presented a new Social Security card after obtaining lawful status?
The Immigration Reform and Control Act (IRCA) of 1986 legally mandates that U.S. employers verify the employment eligibility status of newly-hired employees and makes it unlawful for employers to knowingly hire or continue to employ unauthorized workers. A failure to inquire further may lead to a finding that the employer has engaged in unlawful hiring.
What is a Form I-9?
The purpose of the Form I-9 is to verify employment eligibility for new hires. Each employment eligibility verification form must be accompanied with the employees' identity documents. An employer will be deemed to have constructive knowledge of hiring an unauthorized alien if Form I-9 is not completed for an employee who turns out to be unauthorized to work. However, an employer who completes the I-9 form in good faith has a defense against an allegation that it knowingly hired an alien who is not authorized to work.
When should the Form I-9 verification procedure take place? Once a person has accepted an offer of employment, the employer may start the I-9 procedure verifying whether the employee is a citizen, a permanent resident alien, or an alien with another type of employment authorization (Note: Employers must re-verify employees who listed an expiration date for their employment eligibility on form I-9); form I-9 must be completed within 3 business days of the employee's hire date.
The Social Security Administration (SSA) generates no-match letters when they receive social security information for an employee that does not match the agency's records. The typical SSA no-match letter titled "Employer Correction Request" allows the employer 60-days to respond to the letter and resolve the discrepancies. The SSA is required by law to provide the IRS with information on no-match W-2 forms and the IRS may penalize an employer when the name and Social Security Number do not match SSA records.
It is important to remember that a hiring policy which requires an applicant to be a U.S. citizen or lawful permanent resident is a discriminatory practice prohibited by IRCA. However, terminating an employee who presented false identification documents based on the company's honesty policy is not discriminatory.
Who should be verified? All persons hired after November 6, 1986 must undergo I-9 verification. This includes seasonal employees, former workers "rehired" after the date, and anyone who is issued a W-2 tax statement. Employers are required to maintain the I-9 form for all current employees who were hired after November 6, 1986 for at least 3 years from the date of hire, or for one year after the employment has ended, whichever is later. Independent contractors and employees of such contractors are not required to undergo I-9 verification procedures.
Investigations and compliance audits of U.S. employers is conducted by Immigration Customs Enforcement (ICE) and two offices of the U.S. Department of Labor. These officers make regular inspections of employers under their jurisdiction to assure compliance with wage-and-hour and federal contract standards. In light of recent enforcement statistics, we encourage you to seek proper legal advice from an immigration attorney who can assist you with employment compliance and in-house audits.