The Gov’t Crack Down on Illegal Aliens and the Employer’s Obligation to Verify Employment Authorization

Stephen B. YurikLane Alton & Horst(614) 233-4705SYurik@LaneAlton.com

Increased Enforcement Activity by ICE

The Secure Border Initiative and Operation Return to Sender, June ‘06Secure Borders Interior enforcement

Work SiteJails

Quick Removal

Increased Activity by ICE

Work Site raids and ArrestsCriminal Arrests

FY 2002 25FY 2006 716

Administrative ArrestsFY 2002 485FY 2006 3667

ICE Priorities

National SecurityCritical Infrastructure

Military installationsNuclear Power PlantsChemical Power PlantsAirports

Egregious EmployersRely on Illegal Aliens

Noteworthy Recent Examples

Swift and Company (meat processor)1297 Arrested

219 Criminally ChargedRemainder placed in Removal

Garcia Labor Company / ABX Air Ignored 100s of “No Match” letters from

SSAOfficers face up to 10 years in prisonForfeit $12 million in profits

Employer’s Competing Obligations

Immigration Reform and Control Act ’86Verify Employment Authorization of All

Employees (Form I-9)Must Not Discriminate based on

National OriginCitizenship Status

Completing I-9 Forms

Employees’ ObligationsAttest To Citizenship StatusProvide documents showing identity and

work eligibility fromLists of Authorized Documents

List A: Identity and Work Eligibility List B: Identity List C: Work Eligibility

Completing I-9 Forms

Employers’ ObligationsAttest that has examined document(s)

Cannot specify which documentsAppear to be genuineEmployee is eligible to work in U.S.

Retain I-9s Make available to ICE and DOL

Reverify on or before expiration

Employer’s Knowledge of Unauthorized Employment

Constructive KnowledgeDoes not complete I-9Does not re-verify eligibility before

expirationEvidence requiring further inquiry

Conflicting documentsApparent forgeryTip from ICE “No-match” letter?

“No-Match” Letters

Employers must submit W-2 info to SSANames & SS#s

SSA advises of mismatch sometimesNot constructive knowledge by itself

Clerical errorName change

SSA does not share information with ICEEmployer should take reasonable steps

Proposed Safe Harbor Rule

No-Match not constructive knowledge ifCheck for clerical errorsHave employee confirm records are correctGive employee chance to resolve any

continuing problems with gov’t agencyTerminate employee if not resolved

Basic Pilot Program

Voluntary with exceptionsAllows employers to confirm employment

eligibility within seconds - usuallyHow

Complete I-9Submit to SSA through internet

Queries made to USCIS when necessary

Unlawful Discrimination

National Origin Discrimination – Look at facts, not facesUnlawful Considerations

Place of BirthAppearanceAccent

Unlawful Discrimination

Citizenship Status Lawful status

U.S. Citizen Lawful Resident (Green Card)Asylee or Refugee Temporary Worker

Cannot hire illegal aliensOK to prefer citizen when equally qualified

Penalties for Hiring Illegals or Discrimination Against Legals

Fines 1st offense - $250 to $2000 per individual2nd offense - $2000 to $5000 per individual3rd offense - $3000 to $10,000 per

individualBack Pay in discrimination casesAttorneys fees in limited circumstances

Recommendations

Complete an I-9 on all new hires Be open to hiring non U.S. citizens Don’t make assumptions regarding

employment status based on appearance or accent

Let the employee choose from the list of acceptable documents

Follow up reasonably on indications of unlawful status

Don’t hire or retain immigrants that don’t have employment authorization