What to Do if You Find Out an Employee Is an Illegal Alien

Verifying new workers' employment eligibility is 1 affair. But what should an HR pro do if a longtime, valued employee lacks proper documentation?

An anonymous phone call triggered a startling revelation in the Milwaukee Police Department this spring. Later on investigating the tip, the department discovered that a respected, three-year police officer had been falsely claiming U.South. citizenship--a federal felony--by assuming the identity of his deceased cousin. The police force officer pleaded guilty, will serve up to a year in jail and must go out the United States afterwards completing his jail term.

Yet the plea brought little closure to a contentious effect that still concerns the city and the police department as well as communities and employers throughout the country. It should also business organization HR professionals, who are "the first line of defense a company has confronting unauthorized workers," according to U.S. Immigration and Community Enforcement (ICE) officials.

While the employment of undocumented workers in the U.s.a. represents a complex and emotionally charged issue, it's a potentially serious problem for human resource professionals. That'south because 60 minutes professionals have a legal obligation to follow specific rules when verifying employment status during the hiring procedure; responding to the Social Security Administration (SSA) and Ice, an agency inside the Department of Homeland Security (DHS), almost possible violations; and, when necessary, firing unauthorized workers.

The same compliance process applies when a longtime, loftier-ranking or higher-profile employee is discovered to be unauthorized to work in the United States, although clearing lawyers say these instances are relatively rare.

"Generally, if the employer knows that the employee is an illegal worker, the choice is either to burn the employee or face civil and criminal penalties," says Marcy Stras, an attorney specializing in clearing and employment law and a partner with Baker & Hostetler LLP in Washington, D.C.

Michele Waslin, director of immigration policy research for the National Council of La Raza, the land's largest Hispanic civil rights and advocacy organization, too cautions HR professionals against whatsoever want to "protect" employees-- at any level in their organizations--who are not authorized to piece of work in the U.s.. "Employers who knowingly rent unauthorized workers do then at their ain risk," she explains. "And other employers who are 'protecting' undocumented workers are actually exploiting them and avoiding paying taxes." By fully understanding their legal obligations, HR professionals tin steer clear of pitfalls that pb to the hiring of undocumented workers and avoid placing themselves and their organizations at gamble of criminal and ceremonious penalties.

An Exception Proves the Rule

An estimated 12 million undocumented, or illegal, immigrants reside in the U.s.a., and most of them work. The vast majority of undocumented workers fill lower-level positions in industries that rely heavily on unskilled labor. Meat-packing corporations, poultry-processing plants, janitorial services providers, construction companies and textile mills figure prominently on a list of ICE worksite enforcement operations during the past ii years.

Attorney Cletus Weber, co-founder and partner of Peng & Weber, a U.S. immigration law firm based in Mercer Isle, Wash., identifies several reasons why the frequency of higherlevel, longer-term employees found to lack legal immigrant status is low.

First, as individuals arise the socioeconomic ladder, they generally detect more than and easier options to legally obtain work authorization. For example, a bachelor'southward caste and a job offering are often sufficient to gain temporary piece of work status, such as an H-1B visa that can be relatively easily converted into permanent light-green-card status.

Second, individuals who arise the socioeconomic ladder typically are less willing to take chances beingness fired, serving jail time and being deported.

Third, current enforcement processes focus more on employees who recently entered the workforce; if a new hire submits false documents during the employment verification process and so after rises to higher positions in a company during several years, that employee is unlikely to exist exposed unless someone who knows the truth places an anonymous telephone call or otherwise blows the whistle.

When a higher-level employee is discovered to be unauthorized to work, Weber suspects that the worker may be unaware of the problem. "For example, someone could have illegally entered as a baby or very young child and not know it," he explains. "The parents have no incentive to tell the kid considering doing so puts the child at risk, so the child doesn't know. Somehow, the parents obtain a Social Security number for the child, perhaps through faux birth records showing the child was born in the United States."

Why Compliance Gets Confusing

HR professionals should follow designated steps when initially verifying employment eligibility through the Form I-9 process and when responding to and so-called "no-match" letters from the SSA or, less frequently, from Water ice, whose officials may send out letters after auditing a visitor. No-match letters inform an organization of the existence of a discrepancy with an employee's Social Security number or immigration status information.

These steps are designed to ensure that organizations comply with the Immigration Reform and Command Human action of 1986 (IRCA). The law makes it illegal for companies and organizations to employ people who are not authorized to work in the United States. In practice, however, larger moral, political and economical issues often emerge, confusing the compliance process and, at times, hampering its consistency and effectiveness.

The confusion surrounding the law stems from numerous sources. Controversial new federal and state rules, including guidelines issued past the DHS on responding to no-match messages and an Arizona constabulary that mandates Arizona employers comply with a voluntary federal electronic employment verification system, farther cloud the motion-picture show. The no-match guidelines and the Arizona law both received legal challenges this fall; a federal judge on Oct. 10 preliminarily enjoined the DHS from enforcing its rule. (For a link to an Hr News article on the decision, run into the Web Extras box on the top of this commodity.)

"Considering of the employment opportunities in the United States and the lack of legal means to enter the Usa and piece of work here, many undocumented workers do use faux or fraudulent documents," says Waslin. "This is a upshot of our cleaved immigration arrangement--we need workers, employers hire workers, but legal channels for many workers to come here to work do not exist. Information technology has bred a vast market for false documents." The bulk of employers that encounter problems with ICE and the SSA take false documents from newly hired employees in good faith: They practice not know that they have hired unauthorized workers.

Yet, Waslin points out that "there are some unscrupulous employers who knowingly [and] willingly rent unauthorized workers off the books. By doing this, employers avoid paying taxes and are better able to exploit their workforces."

Aggressive Enforcement

In the past, some companies could in large part get abroad with the practice of hiring undocumented workers considering enforcement and the punishments that occurred when they got caught were relatively lax under the former Immigration and Naturalization Service, supplanted by ICE in 2003.

"Our electric current enforcement efforts far surpass the practices of the onetime Immigration and Naturalization Service, which involved lengthy newspaper reviews and nominal fines," Julie L. Myers, DHS assistant secretary for ICE, wrote in the Kansas Metropolis Star in June. "These fines were assessed nether an outdated structure, were subject to substantial legal wrangling and ended up being zippo more than a slap on the wrist.

"Today is unlike," Myers continued. "… While these criminal investigations are complex and tin take time, this approach makes penalties more than than simply the cost of doing business. Violators face prosecution for federal crimes that include hiring illegal aliens, harboring illegal aliens, identity or document fraud, and Social Security fraud. They face up the very real possibility of consequences to their liberty as well equally to their finances."

Water ice'due south enhanced enforcement efforts are evident in a constantly growing listing of worksite operations. In the by yr, ICE enforcement operations have culminated in arrests and, in some cases, federal indictments against employees of Fresh Del Monte Produce in Portland, Ore.; George's Processing, a poultry-processing constitute in Butterfield, Mo.; Quality Service Integrity, a cleaning and sanitation services provider in Beardstown, Ill.; Greenville, Miss.-based Tarrasco Steel; temporary employment agency Jones Industrial Network in Baltimore; textile products company Michael Bianco Inc. in New Bedford, Mass.; and Swift & Co., a meat-processing corporation based in Greeley, Colo.

ICE has dramatically increased the fines it imposes on employers for violating IRCA. From fiscal years 2003 through 2006, full annual administrative fines imposed on employers never exceeded $46,480 in any given year. However, from Oct. one, 2006, through July 31, 2007, ICE obtained criminal fines, restitutions and civil judgments from employers and company executives totaling more than than $30 million.

Additionally, during the same time flow, ICE worksite enforcement operations resulted in 742 criminal arrests, primarily of company owners and managers whose organizations knowingly employed illegal workers, and 3,651 administrative arrests, primarily of illegal immigrants on the chore.

Both figures near lucifer or exceed the total number of arrests in each category for the entire previous twelvemonth. It is extremely rare for HR managers to be included in those arrests, according to immigration lawyers. Typically, the on-site managers, who work directly with the illegal workers, are arrested. At pocket-sized companies, the owners also are sometimes arrested.

Emotional Result, Legal Response

ICE's newly ambitious enforcement approach and the challenges surrounding new state and federal guidelines regarding unauthorized workers make I-9 compliance essential for HR professionals.

"HR managers tin best avoid I-9 and no-match letter headaches by following the procedures carefully, applying them consistently and not trying to do less or more than than the law requires," Weber explains. The following reminders can aid 60 minutes professionals strike that rest:

• Stick to the procedure. "HR is the watchdog for the company," Stras notes. "It should take a leadership position, with the assistance of the full general counsel'southward office, at the employer. We encourage Hour to have a written corporate I-9 compliance plan that contains the visitor procedures, policies, contact person and preparation provisions."

  That process should include having new employees make full out I-9 forms and evaluating that the documents presented to ostend their employment status "appear to be 18-carat." A new rent whose employment authorization is temporary should exist reminded of his or her responsibility to present a copy of the new employment dominance on the date that the current authorization expires. 60 minutes should ship that reminder prior to the expiration date and follow upwardly with the employee once again on the expiration date.

  No-match messages also crave a specific response: Employers must determine if the discrepancy was acquired by a clerical error. If it was not, the employer must asking that the employee confirm that his or her Social Security number--or other information in certain cases when the no-match letter originates from Ice--matches the employer'due south records. If information technology does not, the employer should inform the employee to resolve the result directly with the SSA within 90 days.

  If and when the DHS' new guidelines have consequence, employers must comply. "It is only a affair of time earlier the nomatch regulations go constructive in their present grade or in a similar form," explains Stras. "Employers should follow the no-match regulations even though [the rules] may be in limbo, because they stand for the best available guidance for a company to protect itself."

• Go on verification consequent with overall Hr policy. "Rather than looking at global migration as still some other piecemeal legal consequence, organizations should accost global migration and labor compliance issues as part of an integrated governance, chance management and compliance approach," advises Scott Mitchell, chairman and main executive officer of the Open Compliance & Ethics Group (OCEG) in Phoenix. OCEG is a nonprofit organization dedicated to helping organizations reach principled performance through a more effective and holistic approach to corporate governance, risk management and regulatory compliance. Co-ordinate to the system, if a new hire or a longer-term employee needs to be fired to comply with IRCA, that procedure should exist carried out in accordance with visitor guidelines.
• Weave I-ix compliance into due diligence. Mergers and acquisitions nowadays a potential compliance run a risk to the acquiring company--and an increasingly common motivation for companies to seek I-9 audits from external legal and compliance firms. "In acquisitions, companies can inherit the illegal workers of the prior owners," says Stras. "This can be due to sloppiness in I-9 procedures or ignorance of our clearing laws. … Any acquisition is a skilful time for housecleaning and to clean upwardly all of the I-9s." Hour executives and managers should perform similar, if less involved, due diligence earlier merging or joining a new company, especially if that company operates in an industry that oftentimes encounters bug with the hiring of unauthorized workers.
• Don't discriminate. Any I-9 audit, in which employees make full out the form again, should exist equitably and consistently applied. "It is important to 're-I-9' the entire workforce and not choose any certain workers … so as not to discriminate," says Stras.

It'southward also important to avoid overreacting to I-9 compliance requirements. "If you become too overzealous about what I-9 laws are supposed to do, then you can discriminate," notes Mark Toth, chief legal officer for Manpower North America and a former employment lawyer in private practice, who has covered I-9 compliance issues in his blog.

Hr professionals can help employees with temporary work authorization to sympathize and work through the steps necessary to gain permanent employment authorization.

Notwithstanding, treating a high-level, long-term employee who is institute to be an illegal immigrant differently from a new hire may leave an employer open to a discrimination charge."The problem is that people see those 2 situations equally different when, legally, they are not," says Toth.

Eric Krell is a freelance writer based in Austin, Texas.

Web Extras

SHRM article:
DHS Once more Barred from Enforcing SSN 'No-Lucifer' Rule (60 minutes News)

SHRM article:
Expert: Audit To Ensure I-9 Compliance

SHRM toolkit:
I-9 Form and Illegal Workers (SHRM Online Compensation & Benefits Focus Area)

FAQs :
Safe-Harbor Procedures for Employers Who Receive a No-Match Letter Regulation (U.South. Immigration and Community Enforcement)

Grade :
I-9

SHRM video:
Victor Cerda, erstwhile primary of staff for U.S. Immigration and Customs Enforcement, on the increased penalties employers face for hiring illegal immigrants

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Dotting Your I-9s

Despite its occasionally emotional and complex ramifications, the procedure of verifying employment eligibility should be straightforward and relatively routine.

HR managers normally are responsible for ensuring that an I-ix form, the federal document aimed at verifying employment eligibility nether the Immigration Reform and Control Human activity of 1986, is completed past all new employees.

That process includes examining one or two identification documents listed on the I-9 grade and making sure the documents appear authentic and related to the person presenting them. Employers must complete the grade within 3 days after a new employee starts work.

The process tin can pause downwards, according to immigration lawyers, when HR executives are either unfamiliar with or devil-may-care most post-obit the requirements, or when they try to do as well much to prevent the company from hiring undocumented workers.

"The I-9 process is a stone-and-a-hardplace problem for Hr staff," explains chaser Cletus Weber, co-founder and partner of Peng & Weber, a U.S. immigration police firm based in Mercer Island, Wash. "Likewise passive an attempt can lead to punishment for noncompliance, but too aggressive an effort can lead to discrimination claims."

Weber suggests that HR professionals responsible for verifying employment eligibility proceed the following five points in mind when they design and execute their I-9 processes:

• Don't insist on a specific document, such as a U.S. passport. Instead, rely on the lists of acceptable documents on folio three of the I-9 form.
• Create reminders to reverify documents of workers who have only temporary work status.
• Avoid the temptation to utilize the I-nine process to finish or threaten employees who should be disciplined for other reasons (e.g., poor performance).
• Responses to "no-match" letters from the Social Security Administration or from U.S. Immigration and Customs Enforcement should be treated the same every bit the I-9 process itself: Practise no less and no more than than required, and be careful to complete the steps uniformly for all employees involved.
• Absent actual or "effective" (i.e., implied) noesis that documents are fake or vest to another person, the full general issue is non whether the employee or applicant is actually authorized to work, only whether the employer has reasonably complied with the I-9 rules.

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The Toll of Noncompliance

U.S. Immigration and Customs Enforcement views noncompliant employers every bit a "key component of the illicit back up that enables illegal immigration to flourish," and has not been coy almost its intention to aggressively enforce the Immigration Reform and Control Deed of 1986. Role of that enforcement includes fines. Criminal penalties for employers, and their managers, who violate the law include fines of up to $iii,000 per unauthorized worker and jail time of up to six months. Civil penalties may vary.

• First offense: $275 to $two,200 per unauthorized worker.
• 2d crime: $2,200 to $five,500 per unauthorized worker.
• More than ii offenses: $iii,300 to $11,000 per unauthorizedworker.

Boosted fines of up to $one,100 per unauthorized worker can be imposed on employers under certain conditions. The corporeality of the penalization is determined in consideration of several factors, including the post-obit:

• Size of the business.
• Good faith of the employer.
• Seriousness of the violation.
• History of previous violations past the employer.

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Source: https://www.shrm.org/hr-today/news/hr-magazine/pages/1207krell.aspx

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