Employers should be taking their work authorization obligations just as seriously as the government is. Besides increasing worksite enforcement, the government has also boosted penalties for workplace immigration violations. In June, President Bush amended Executive Order 12989 to require federal contractors to use the government’s E-Verify program. And don’t forget that many states have also passed their own laws, some of which require the use of E-Verify (though some of those laws are facing legal challenges).
Get To Know E-Verify
Executive Order 12989 will become effective when final regulations are issued. Whether you are mandated to, or you voluntarily chose to, use E-Verify, understand that you may not begin the E-Verify process until after an individual accepts an offer of employment and after the Form I-9 is completed; it must be initiated no later than the end of three business days after the new hire’s actual start date. Participants are required to sign a Memorandum of Understanding (MOU) that provides the terms of agreement between the employer, the Social Security Administration (SSA), and the Department of Homeland Security (DHS), and to read a user manual and complete a tutorial before using E-Verify. (Note: The MOU will be amended to comply with Executive Order 12989.)
Warning: Although employers that verify work authorization via E-Verify are presumed to have not knowingly hired an unauthorized alien, participation in E-Verify does not provide protection from worksite enforcement.
The DHS reserves the right to conduct Form I-9 compliance inspections during the course of E-Verify, as well as to conduct any other enforcement activity authorized by law. Employers must allow the DHS or SSA to make periodic visits for the purpose of reviewing documents created during the employer’s participation in E-Verify, including: Forms I-9, SSA Transaction Records, and DHS verification records.
Increased Penalties For Non-Compliance
The government has added an incentive for employers to comply with immigration law. Civil monetary penalties went up beginning March 27, 2008, for violations that occur on or after that date.
Penalties for failing to comply with the employment eligibility verification process (Form I-9) or for knowingly employing or continuing to employ unauthorized aliens range between $375 (for a first offense) and $16,000 (for subsequent offenses).
Penalties for document fraud (e.g., forging or altering documents for I-9 purposes) start at $375 and may go up to $6,500.
Penalties for document fraud related to preparing, filing, or assisting others in preparing or filing falsely made or fraudulent documents are between $275 and $5,500.
Penalties for unfair immigration-related practices (e.g., discriminating against applicants or employees based on nationality or citizenship status; refusing to accept permissible documents presented by an employee in compliance with Form I-9 requirements) start at $375 and can go up to $16,000.
Penalties for E-Verify participants who fail to notify the DHS of the inability to confirm an employee’s employment eligibility are not less than $550 and not more than $1,100.
Update On “No-Match” Letters
Last year, the DHS had issued regulations regarding receipt of SSA no-match letters. Prior to the September 14, 2007, effective date, employee and employer groups filed a lawsuit to block the implementation of the regulations. A federal court issued an injunction. In March, the DHS issued a supplemental proposed rule to address the court’s concerns, but did not revise the regulation. In June, the court agreed to continue to delay the lawsuit.
In the meantime, the 9th Circuit issued a ruling in June that an employer’s receipt of SSA no-match letters did not provide the company with constructive knowledge that it was employing undocumented workers, and that it fired workers without cause who did not comply with the company’s directive to correct the mismatches within three days. The court upheld an arbitrator’s decision to award the employees back pay and reinstatement. Said the court: “Constructive knowledge is to be narrowly construed in the immigration context and requires positive information of a worker’s undocumented status.” (Aramark Facility Services v. SEIU, Local 1877, AFL CIO, CLC, 9th Cir., No. 06-56662, 2008)
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