Running a Shop Law Employment Law

Using Proper Documentation to Avoid Illegal Workers

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Spectrum Ina Road Auto Collision in Tucson, Ariz., operates in an area with a high immigrant population. Shop owner Javier Avalos says that unknowingly hiring illegal workers is certainly an issue that weighs on his mind.

Avalos gets job applications from people whom he believes are likely illegal workers about once a month, and he knows there are some significant government penalties businesses can encounter from hiring them.

“The most difficult issue is knowing who has the right documentation,” Avalos says. “There’s no way to know whether or not those documents are legitimate.”

Avalos put some strategies of his own into play to help prevent hiring illegal workers. He assesses each applicant’s communication skills, work history and I-CAR certifications to get a feel for how long they’ve been in the country.

The truth is, the tactics Avalos uses to play detective aren’t necessary. If you can prove that you put your best foot forward in attempting to hire legal workers, you don’t have to be too concerned about a government agency knocking on your door. But there are certain things you have to do to prove that you did your best not to hire illegal workers—like have your Form I-9s in order, assess employee identification documentation and double check social security numbers.

“We’re looking to get to employers in all 50 states and territories. We’re not focused on any particular business or sector; we’ll look at all types and sizes of businesses, large and small.”
— Brett Dreyer, unit chief for worksite enforcement for
U.S. Immigration and Customs Enforcement (ICE)

Government investigations of businesses regarding immigration issues are on the rise, and you could be slapped with some stiff penalties if you’re found in violation.

“We’re trying to create a culture of compliance,” says Brett Dreyer, unit chief for worksite enforcement for U.S. Immigration and Customs Enforcement (ICE). Self-compliance on behalf of businesses is the ideal goal, but “we recognize that sometimes there has to be enforcement to create a deterrent effect.”

Knowing your responsibility as a business owner in hiring employees could save you from finding yourself in hot water with the government. Fortunately, there are plenty of tools available to help you.

Investigations in the Rise

Don’t think ICE is solely focused on the big, corporate businesses when it comes to immigration enforcement. Even single-location shop operators with only a handful of employees are on ICE’s radar too, and are subject to investigation.

Dreyer says ICE has expanded its efforts in enforcing immigration laws in businesses over the last two years. In fact, ICE initiated a record number of more than 2,700 worksite investigations in 2010, and is hoping to exceed that number in 2011.

“We’re looking to get to employers in all 50 states and territories,” Dreyer says. “We’re not focused on any particular business or sector; we’ll look at all types and sizes of businesses, large and small.”

Show Good Faith

So what exactly are you supposed to do to hire legal workers? The government doesn’t expect you to play detective, but you are expected to make a reasonable effort to do the right thing. It all starts by following the proper Form I-9 procedures.

It’s important to take your Form I-9 process very seriously, says Shawn Neudauer, spokesman for ICE. Form I-9 information and the information related to your hiring practices are just as important to the federal government as your taxes.

• File the form. Your Form I-9 for each employee must be filed for three years after the date of hire or one year after employment is terminated, whichever is later, according to U.S. Citizenship and Immigration Services (USCIS). And the form must be completed in English, except in Puerto Rico.

• Acquire identity documents. Employers must examine the original identity documents submitted to them by the employee, according to USCIS. Photocopies and metal-plated social security cards are not sufficient, Neudauer says. It must be the actual original document.
The list of acceptable documents you can attain from employees can be found at uscis.gov/i-9.

• Determine whether those documents are legit. When employers are provided with identity documents from employees, they must determine whether the documents reasonably appear to be genuine and relate to the employee, according to USCIS.

Jim Riley, chief financial officer for Auto Center Auto Body Inc. based in Yorba Linda, Calif., says it’s not hard for workers to purchase phony identification documentation right on certain streets in Los Angeles. Illegal immigrants tend to have pretty good-looking documents, he says, noting it’s not easy to spot a fraud when it’s presented to you.

“We recognize that employers are not document experts,” Dreyer says. As long as you can say the document appears to be real, you should be free of liability.

E-Verify

In the past, there was criticism that the country was vulnerable to people using fraudulent documents, Dreyer says. That’s been an unfortunate consequence of the Immigration Reform and Control Act of 1986, which put the Form I-9 process in place. It generated a proliferation of fraudulent documents throughout the country.

“E-Verify is the best, easiest and fastest way to verify your employees’ information is on the up-and-up.”
— Jim Riley, chief financial officer for Auto Center Auto Body Inc.

The result was the E-Verify program, launched in 1996. It’s a free, Internet-based system operated by the Department of Homeland Security that allows business owners to determine the eligibility of newly hired employees to work in the United States. You simply enter a Social Security number into the system, and responses come back within seconds, Dreyer says.

Any employer can sign up to use E-Verify, which allows them to compare an employee’s Form I-9 information with more than 455 million records in the Social Security Administration’s database, and more than 80 million records in the Department of Homeland Security’s database.

Go to uscis.gov/e-verify for more information.

Riley uses the E-Verify system. Prior to that, Riley says employees would submit their social security number, and it would take up to three months before the government got back to him saying there was a problem with the information.

“E-Verify is the best, easiest and fastest way to verify your employees’ information is on the up-and-up,” Riley says.

E-Verify is designed only to verify new-hire employees, Dreyer says. If you’re concerned about the status of an existing employee, he suggests using the Social Security Number Verification Service, a tool that was designed to ensure the integrity of payrolls and that taxes are going to the appropriate account. Employers can run their employees’ names and Social Security numbers through the system to make sure the information matches up.

“We encourage people to use that system because it can help resolve discrepancies that might exist in your paperwork,” Dreyer says. You can find more information about the service at ssa.gov/employer/ssnv.htm.

The Penalties

There’s nobody forcing you to put these practices in place to do your best to hire legal workers. But you’re open to liability if you don’t put that effort in up front and you end up with illegal workers.

“If an employer is acting in good faith and makes every effort to comply with the law, they will generally not be held liable for any penalties,” Dreyer says. “But employers can face penalties if we’re able to determine they acted in bad faith by knowingly employing unauthorized workers or failing to follow the Form I-9 process.”

Dreyer adds that’s part of what ICE auditors try to determine as they investigate businesses for immigration problems.

But what are the penalties? They vary greatly from situation to situation. ICE considers five factors in assessing penalties for business: history of the business, size of the business, presence of unauthorized workers, seriousness of violation and good faith of the employer.
“Penalties can range from fines to a criminal investigation,” Neudauer says, noting business operators could even face prison under a criminal prosecution.

And if your Form I-9 paperwork isn’t in order, you could be subject to monetary civil penalties ranging from $100 to $16,000, depending on the type of violation, Dreyer says.

It’s just like the tax world where the Internal Revenue Service (IRS) does tax audits, Dreyer adds. All U.S. taxpayers know there’s a chance they could be audited.

“That’s our goal with immigration compliance. We feel that employers have to understand there could be consequences if they don’t comply with the law,” Dreyer says.

Best Practices

There are a few other resources to help educate you on best practices for employee work status verification. ICE created the IMAGE program, an outreach and education program for businesses.

IMAGE has two components, Dreyer says. The first is a membership component. This is an elite group of employers who have a solid employment model in place.

“They go through an I-9 inspection through the ICE to become a member, and those employers get certified by the ICE showing that they’re implementing all the best practices and are ‘role model’ companies,” Dreyer says, noting there are 114 employers involved today.

You can find a list of ICE’s “best hiring practices” at www.ice.gov/image/best-practice.htm.

The bigger part of the program is about educating the public, Dreyer says. ICE has an IMAGE coordinator in each of its field offices across the county who is trained on compliance issues.

“Those agents provide free education and training to employers, and offer advice on how they can best comply with the law,” Dreyer says.
Employers can contact the ICE to request information or schedule a presentation with an ICE agent.

“This is something businesses can do to take a stand on immigration issues,” Neudauer says. “It’s a way for businesses to say they’re committed to making sure they’re hiring people who are legally able to work in the U.S.”

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