Shhhh! . . . the Immigration Solution Is on the Web
January 1, 2008
Shhhh! . . . the Immigration Solution Is on the Web
By Jake Monty, Managing Partner,
Monty Partners LLP
Immigration is one of the hot topics that all politicians have an opinion about, but few are willing to tackle. After Congress failed to pass immigration reform, Department of Homeland Security (DHS) Secretary Michael Chertoff announced in August 2007 that his department was taking every tool in its bag, sharpening them up and using them to enforce the country’s immigration laws. One needs only to look at recent headlines to see that Secretary Chertoff was serious when he made that statement.
As our industry is well aware, Immigration and Customs Enforcement (ICE) publicly raided several companies ranging from multinationals to smaller producers, creating both legal and publicity nightmares for those companies.
Many companies thought they did everything they could to ensure they followed all immigration laws, yet ICE still came knocking on their doors, sometimes with helicopters and the media in tow. One thing ICE has done during its current reign of corporate terror is provide information on what exactly employers need to be doing in order to comply with the letter of the law. ICE has been very candid about its tactics and focus areas. ICE has not kept this information close to its vest. ICE has publicized this on its Web site and in interviews with the media in order to be sure it gets credit for telling us what ICE looks for. The following is a top 10 list of initiatives employers can undertake in order to minimize the potential liability of an ICE investigation.
Visit ICE’s Web site
One of the easiest things employers can do is visit ICE’s Web site and see what it recommends that employers do in order to be in compliance. For example, ICE provides employers with a list of best hiring practices, some of which are incorporated below. Employers also can read ICE news releases on worksite enforcement actions and obtain information on the various tactics ICE uses in building civil and criminal cases. A great deal of helpful information is readily available through the use of a quick search, including Chertoff’s official blog. The ICE Web site should become a favorite for those in the industry concerned about immigration.
Use E-Verify for all hiring
E-Verify (formerly Basic Pilot) is a free Web-based program that allows employers to perform employment verification checks of Social Security Administration and DHS databases for all newly hired employees. Once an applicant presents documents demonstrating both identity and employment eligibility during the Form I-9 process, the employer has three days from the date of hire to perform an E-Verify check. By utilizing E-Verify, a company obtains civil and criminal immunity for all employees run through the system in good faith. The benefits of E-Verify are huge, and it is free. It is a great way to establish that your company is not an egregious employer and that you are taking every available step to stay in compliance.
Yet, as noted by Chertoff, whileE-Verify inoculates a company against one kind of immigration fraud, it does not inoculate against all kinds of fraud. Still, it is the best game in town.
Arrange an I-9 audit
Hire an external auditing firm to ensure I-9 compliance. Performing a self audit is key to determining any potential liability in case an employer is targeted by ICE or any other governmental agency. It’s better to know where you stand and develop a plan of action before ICE develops one for you. If you cannot hire an outside firm, at least do an internal audit of your I-9s. If problems are found, correct them in a conspicuous fashion, such as with red ink, and include the date of the correction. Remember, I-9 regulations do not require perfection, but they do value good faith. You may wish to consider one of the electronic I-9 programs available such as Lookout, which helps reduce the number of paperwork violations.
Establish an internal I-9 training program
ICE agents love to scrutinize I-9s. They have been known to request I-9s of a certain facility, and if they notice noncompliance or a pattern of identity fraud, they can then expand their search to other facilities or eventually go company-wide. By establishing an internal I-9 training program on how to properly complete an I-9 and detect fraudulent use of documents, employers can reduce their liability of a full-fledged, company-wide ICE investigation. Employers can also download the recently revised M-247 Employer Handbook: Instructions for Completing the Form I-9, from www.uscis.gov. Employers should ensure that their HR staff has reviewed the M-247 handbook and is familiar with the I-9 process.
Establish a culture of immigration compliance
Companies need to establish, publicize and enforce an immigration compliance policy. Many companies are caught unprepared when it comes to defining how they are going to handle immigration compliance issues without an established and enforced policy. A manager at a remote location can often argue that he did not know how he was suppose to handle immigration issues that came up and that he thought he was following the company’s policy. Many immigration mistakes are made by rogue managers or supervisors that are acting against their employer’s directives. Without a written policy, employers are behind the eight ball. The written policy should address issues such as what the company will do when an innocent bystander complains of identity theft and how the company will respond when it receives reports, official or unofficial, that someone is undocumented. More than 10 years ago, employers throughout the country got the mandate that they needed to establish, publicize and enforce no harassment policies. Employers today must do likewise with regard to immigration compliance policies. The stakes are just as high, and ICE is expecting it.
Avoid harboring scenarios
In reviewing ICE’s Web site and press releases, it is obvious that ICE is focusing on identity theft, which is difficult to combat, as well as harboring situations whereby employers are housing, transporting or otherwise aiding undocumented aliens in their daily lives in the United States. The big problem with harboring situations is that they offer ICE an opportunity to fine employers much more severely than for merely hiring situations. Diligent employers are in tune to this trend by ICE and are reviewing their own practices to ensure that they are not offering housing or transportation to individuals they know are undocumented. If housing is provided (a bad idea), it is important to ensure that there is a separate agreement documenting the landlord-tenant relationship and to ensure that it is not part of the overall employment-benefit package. Likewise, great care should be made to ensure that company vehicles are not entrusted to individuals who the company knows may be undocumented.
Don’t contract out your immigration responsibility
While many producers use contractors for various segments of their business, they should not believe they can contract out their immigration responsibility. Whether it is temporary help or sanitation, employers need to ensure that their contractors and employees of contracted help are legally authorized to work. Contracts executed with outside contractors should have language that states that they expect their contractors to follow the law regarding immigration. Producers also should demand audit rights to check up on contractors that are working on their premises. Insisting on language that contractors comply with immigration and giving employers the right to audit their compliance is not going to destroy the independent contractor relationship, but it will demonstrate that a company is concerned about the immigration status of all those people working at its premises.
Establish a no-match letter protocol
Although a federal judge issued a temporary injunction preventing DHS from implementing no-match regulations and the mailing of the new type of no-match letters, the injunction did not prevent the mailing out of the old type of no-match letters that the Social Security Administration has been sending since 1996. DHS will continue to use the receipt of no-match letters as proof of constructive knowledge that employers knowingly hired unauthorized workers. The injunction is a short-lived reprieve as DHS is currently rewriting the regulation to addresses the concerns raised by the federal judge in his ruling and expects to have new regulations by March 2008.
Now is the time to determine how many no-match letters have been received and resolve the issues accordingly. Additionally, pay special attention to no-match situations where the Social Security Administration has advised the company that the number in question actually corresponds to a dead person, infant or retired person. These special no-match letters require immediate attention. Lastly, the no-match protocol must at a minimum include some method of letting the affected employee know about the no-match in writing. Simply ignoring the no-match is dangerous under the new regime that will come into power when the regulations are revised.
Social Security Number vigilance
One of ICE’s main focuses is identity theft, and one of the major areas of identity theft is that of Social Security numbers. Identity theft is a problem that even E-Verify does not detect. A recent area of identity theft that has peaked the interest of ICE officials is the fraudulent use of Puerto Rican Social Security numbers. The first three digits of a Social Security number indicate the state of issuance. Proactive employers are now ensuring that the Social Security area number of an applicant corresponds to the employment application. In a Dallas Morning News interview regarding the Swift investigation, senior ICE agent John Chadwin stated that he noticed a large number of employees with Puerto Rican social security numbers working in the Texas panhandle and became suspicious.
Want to know where a Social Security number beginning with 450 was issued? The Social Security Administration has on its Web site (www.ssa.gov/employer/stateweb.htm) a printout that shows you where the Social Security numbers were issued based on the first three “area numbers.” Savvy employers are ensuring that a person whose social security number indicates it was issued in Puerto Rico actually has some information in his application indicating that he is actually from Puerto Rico and not, say, Mexico. Again, employers cannot simply sit back and assume that just because the applicant or employee is on E-Verify that they do not have to do anything more. For example, all of the 1,200 people arrested at the Swift plants last year had cleared E-Verify. Diligent employers are taking aggressive steps to go beyond E-Verify and examine the area numbers of applicants’ Social Security numbers to ensure they correspond with the employment application.
ICE loves to connect the dots. If applicant, Juan Masa, presents a current Arkansas identification card and a Social Security card issued in Puerto Rico, yet states on his employment application that he was educated and worked in Honduras, red flags should be raised. While it is by no means illegal or unusual for an applicant to have moved around the states and even countries, diligent employers need to look at the information provided by the applicant and ensure that it is consistent with other information, including where the social security number of the applicant was issued. It is quite possible for someone to have been born in Arkansas and been issued a Social Security Number there and spent all of his adult life in Florida. However, it is also possible for such a scenario to be indicative of someone who has engaged in identity theft.
Avoid violating anti-discrimination practices
Employers must strike a balance between being proactive and not crossing the line and violating anti-discrimination provisions. Nearly every day, job applicants call the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) to complain of discrimination based upon citizenship or immigration status. Employers should establish and maintain safeguards against unlawful discrimination in both the hiring and employment verification processes. By establishing safeguards, employers can curtail the possibility of OSC knocking on their door.
As Chertoff has stated, the vast majority of employers want to comply with the law. Employers can utilize the tools above to ensure that they are doing everything in their power to comply with complex and sometimes contradictory immigration laws.
As hokey as it sounds, technology is the way to address many of the immigration problems that face the industry. While ICE has been very aggressive in going after the meat industry, it has been very open and candid with employers on what issues the new employer should focus on and avoid.
Jacob M. Monty is Managing Partner of Houston’s Monty Partners LLP, the largest Hispanic-owned law firm in the Southwest. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Monty Partners has 40 retired ICE agents who work with the firm auditing employers throughout the country. Jacob has extensive experience in handling labor issues affecting the meat industry.