February 24, 2010
By T. Mills Fleming, published on February 24, 2010, in Business in Savannah.
Immigration law may not be at the forefront of the political landscape, but that doesn’t mean you should be lulled into a false sense of security.
On the contrary, immigration officials lately have begun conducting more Form I-9 audits and have refocused their prosecution on employers rather than illegal immigrants. Employers who do not carefully check their employees’ identity and eligibility status could face up to 10 years in prison or a fine of up to $1,100 per violation because a false statement on an I-9 form is considered felony perjury.
The most severe punishments generally are reserved for employers who have established a pattern or practice of hiring illegal immigrants and who have poor working conditions. Employers with good working conditions who pay at or above the prevailing wage and with only a couple of violations would likely face misdemeanor charges.
In an era of increasing scrutiny, employers would be wise to conduct an internal audit to make sure that their documents comply with the law. An immigration attorney can help sort through the necessary paperwork, make sure all employees have valid social security numbers and make sure all documents are properly stored.
In addition to an internal audit, employers can take advantage of a new free program sponsored by the U.S. Immigration and Customs Enforcement Agency (ICE). The ICE Mutual Agreement between Government and Employers (IMAGE) program provides employers with information and services to ensure that all new hires are applicable for employment.
In exchange for an employer’s proactive participation, ICE promises not to raid employers for a period of two years after signing up for the program and will consider enrollment in the program as a mitigating factor in case a business faces civil fines for employing illegal immigrants.
After an initial Form I-9 audit and inspection, the program requires employers to use E-Verify to check the employment eligibility of all new hires. E-verify is administered by U.S. Citizenship and Immigration Services (USCIS) and is mandatory for any employer seeking a government contract in Georgia. The free, nationwide Internet-based system provides an automated link to the Social Security Administration database and DHS immigration records to instantly check worker eligibility.
To ensure that all new hires are legal, ICE will train employees with hiring authority to identify fake green cards, properly fill out I-9 forms, use the E-Verify system and document the definitive resolution of “no-match letters” received from the Social Security Administration (SSA).
Employers must then develop an internal training program (updated annually) for employees with hiring authority. They must arrange for annual I-9 audits by an external auditing firm or a trained employee not involved in the I-9 process.
Further, employers must communicate IMAGE guidelines to other companies in the participant’s hiring network (such as employment services and agencies) and contractors and designate an employee within the company as a point of contact for the IMAGE program.
As an additional safeguard, employers must establish a channel for employees to report the employment of unauthorized aliens such as e-mail, inbox or telephone hotline.
Finally employers must establish and maintain appropriate policies, practices and safeguards against the use of the verification process for unlawful discrimination, establish a record-keeping program to track the number of employees removed and potential employees denied employment as a result of participation in the IMAGE program and develop and implement retrieval protocols for prompt delivery of records, such as I-9 Forms, to ICE if needed.
Once these protocols have been established employers can feel relatively secure in their ability to avoid prosecution and fines. If the process seems overwhelming, seek the advice of a knowledgeable immigration attorney.
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