United States: Government Elevates Immigration Enforcement

Swift & Co. meat packing was raided by federal immigration agents—ICE’d, so to speak—in six states in December 2006. According to Immigration and Customs Enforcement (ICE), a Department of Homeland Security agency and the investigative arm for federal immigration, this won’t be the last workplace raid. Employers are the bull’s-eye of ICE’s enforcement target.

ICE is going to take a "tough stance" against those who employ illegal aliens, said Michael Chertoff, Secretary of the DHS, in remarks made after the Swift raids. "In fact," Chertoff added, "I’m pretty much going to guarantee we’re going to keep bringing these cases."

That should cause any employer concern, especially considering that Swift & Co. voluntarily participated in the DHS Basic Pilot Program to confirm whether a prospective employee’s name matches a legitimate Social Security number. In addition, when Swift learned that it might have a problem with illegal workers, it took the initiative to interview suspect employees. More than 400 workers quit or were terminated. The company’s cooperation and initiative was rewarded with an ICE raid that shut down production for a day at six sites and resulted in the arrest of more than 1,200 members of Swift’s workforce.

The raid was part of a trend confirming Secretary Chertoff’s promise to target employers. In April last year, IFCO, a German pallet-recycling company, was ICE’d. Seven current or former managers and more than 1,100 employees were arrested in 40 locations in 26 states. The charges went beyond civil penalties for immigration law violations. Managers were criminally charged with conspiring to harbor illegal aliens and encouraging them to reside in the United States for commercial advantage and private financial gain—a felony that carries a potential prison term of 10 years.

Employers can’t eliminate themselves as targets, but they can substantially reduce their risk of a devastating raid through rigorous I-9 compliance, a consistent approach to addressing no-match Social Security letters and development of a raid-response plan.

Every employer is required by federal law to fill out Form I-9 for every employee. This form requires the employee and employer to confirm the employee’s identity and authorization to work in the United States. The form is not turned into the government, but is kept by the employer and must be completed within three days of hire. The employee is the only person who signs the first section, and the employer is the only party to sign the second. The employer, however, is responsible for ensuring that the entire form is properly completed. The employer must keep the I-9 form following an employee’s termination for either one year after termination or three years after the date of hire, whichever is longer.

When Congress failed to pass comprehensive immigration reform, some states enacted their own laws regarding I-9s. For instance, since January 1, Colorado employers have had to affirm in writing within 20 days of hiring a new employee that the employer has examined the legal work status of the new employee, has retained file copies of the documents relied on to demonstrate legal status, has not altered or falsified the employee’s identification and has not knowingly hired an unauthorized alien. Colorado employers must keep an electronic or written copy of this affirmation and the employee’s documents demonstrating authorized work status for the duration of the person’s employment.

Employers in any state can take the following measures to keep I-9 files in compliance:

1. Conduct an I-9 audit to determine current compliance. If corrections must be made, attach a corrected I-9 to the current I-9. Do not backdate documents or alter the original I-9 forms.
2. Have one or two qualified employees be trained in I-9 compliance. Do not allow multiple employees to fill out I-9 forms, but give the trained employees responsibility for handling I-9 responsibilities to maintain consistency.
3. Keep I-9 documents separate from personnel files. I-9 forms should be kept in two places: one for current employees, kept in alphabetical order, and one for terminated employees, kept in chronological order to be purged.
4. Examine original documents only. The employee chooses which documents to show the employer. Do not ask for specific documents.
5. Make copies of the documents, both front and back. Give one copy of the I-9 and other documents to the employee. Keep the original I-9 and copies of the other documents in your organization’s I-9 file.

The Social Security Administration (SSA) sends "no match" letters to employers if it determines that an employee’s Social Security number does not match the name in the agency’s records. The letter does not mean that the employee is illegal. In fact, the letter states, "This letter does not imply that you or your employee intentionally gave the wrong information about the employee’s name or Social Security number. Nor does it make any statement about an employee’s immigration status." Receiving the letter does not constitute "actual or constructive knowledge" that the employer has hired an illegal alien. For these reasons, the employer should not take any immediate action against the employee.

The employer should first review its own records and the W-2 form it submitted to the SSA. A common error is transposing or improperly recording a number. If the employer’s records do not match, corrections should be submitted to the SSA.

If the employer’s records are accurate, the employer should provide a copy of the no-match letter to the employee, with instructions to check his or her Social Security card and inform the employer of any name or Social Security number differences. The instructions may give the employee a reasonable amount of time to contact the SSA to resolve any discrepancies. Employers should recognize that the SSA is not always able to immediately respond and the employee may need additional time to resolve the issue.

An employee is not required to show the Social Security card to the employer and the employer should not ask for it. If the employee discovers a discrepancy or discloses a reason for a discrepancy, such as marriage or divorce, that information should be submitted to the SSA.

If the employee confirms that his or her name and Social Security card are correct, the employer should inform the SSA that the employer has con-firmed the employee’s information. If the employee admits that he or she does not have employment authorization, the employer must terminate employment. The employer does not have an obligation to report the former employee to the Immigration Service or SSA.

If the employee refuses to follow up with the SSA or does not follow up with the employer as to progress in resolving any discrepancy, the employer should contact an attorney to discuss subsequent action. Termination of employment based on receipt of no-match letters may give rise to discrimination claims by the terminated employee.

An employer has no duty to audit remaining employees’ Social Security numbers and should under no circumstances conduct an audit based on an employee’s national origin or other protected-class status.

Immigration or Department of Labor officials should provide an employer with three days’ notice if they plan to review I-9 files. This is a brief opportunity for the employer to audit I-9 files and make any corrections as outlined above. If officials find violations, they may issue fines or warning notices. Even at this stage, employers often can negotiate a settlement.

Once a review has been completed, employers should not assume the investigation is resolved; it may be only the beginning. ICE can obtain war-rants and conduct a search of the employer’s workplace, including seizing I-9 forms. Criminal charges can follow. Or ICE may consider its investigation a criminal matter from the beginning and conduct a raid of the employer that involves the SSA, Internal Revenue Service, Federal Bureau of Investigation, U.S. Postal Service and U.S. Attorney’s Office.

If the government is at the door, the employer should immediately contact its attorney. While awaiting the attorney’s arrival, the employer should review the warrants and obtain a list of all agencies involved. Most important, the employer should decline to answer any questions until receiving legal counsel.

A list of best practices for immigration and customs enforcement appears on the reverse side of this page.

This alert is only a general summary written for promotional purposes and does not constitute legal advice. Any information contained in this alert concerning a federal tax issue is not intended or written to—and cannot—be used by any taxpayer for the purpose of avoiding penalties that may be imposed under the Internal Revenue Code. If you are interested in learning more about the items summarized above, you should seek qualified tax advice based on your own particular circumstances.

1. Use the Basic Pilot Employment Verification Program (administered by U.S. Citizenship and Immigration Services, or USCIS) for all hiring.
2. Establish an internal training program, with annual updates, on how to manage completion of Form I-9 (Employee Eligibility Verification Form), how to detect fraudulent use of documents in the I-9 process and how to use the Basic Pilot Employment Verification Program.
3. Permit the I-9 and Basic Pilot Program process to be conducted only by individuals who have received this training—and include a secondary review as part of each employee’s verification to minimize the potential for one individual to subvert the process.
4. Arrange for annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in the I-9 and electronic verification process.
5. Establish a procedure for reporting to ICE any violations or discovered deficiencies.
6. Develop a protocol for responding to no-match letters received from the Social Security Administration.
7. Establish a "tip line" on which employees can report activity relating to the employment of unauthorized workers, as well as a protocol for responding to employee tips.
8. Establish and maintain safeguards against the verification process being used for unlawful discrimination.
9. Establish a protocol for assessing contractors’ and subcontractors’ adherence to the best-practices guidelines.
10. Submit an annual report to ICE to track results and assess the effect of participation in the IMAGE (ICE Mutual Agreement between Government and Employers) program. IMAGE is designed to build cooperative relationships between government and businesses to strengthen hiring practices and reduce the unlawful employment of illegal aliens. The initiative also seeks to increase industry compliance and corporate due diligence through federal training and employer education. The program requires employers to submit to an I-9 audit by ICE and to confirm the Social Security numbers of existing employees through the Social Security Number Verification Service (www.ssa.gov/employer/ssnvspamphlet.htm; www.ssa.gov/employer/ssnvs_handbk.htm).

Lindquist & Vennum provides counseling and defense for employers in immigration matters. We also offer a comprehensive training program that covers I-9 compliance, response to no-match SSA letters and plans for responding to governmental immigration investigations. For further information, contact one of the following attorneys:

John Chanin, DeAnne Hilgers, Steve Peters, Ansis Viksnins and Nancy Vollertsen

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.