ALTHOUGH THE DEBATE CONTINUES TO RAGE ON ABOUT HOW TOUGH THE UNITED STATES SHOULD BE on the millions of illegal immigrants in residence here, the fact remains that many U.S. industries? such as the green industry?rely heavily upon these mostly Mexican workers. Landscaping is one business in particular in which Mexican immigrants have sent down roots so strong that many landscape companies could not continue to operate without them.
This places employers in a very frustrating situation. They have a demand for immigrant workers, yet the H-2B visa program may not be sufficiently meeting their labor needs. They may knowingly or unknowingly end up hiring illegal workers as they expand their labor pool. This fills a company?s need, but may put that company at risk.
Recently, there has been a huge upsurge in workplace raids by U.S. Immigration officials in response to growing political pressure to crack down on illegal immigration. Immigration agencies are aggressively enforcing existing laws which prohibit an employer from ?knowingly? employing an unauthorized alien.
In the past six months, the U.S. Department of Homeland Security?s Immigration and Customs Enforcement section (ICE) has conducted massive round-ups of illegal foreign nationals throughout many states. ICE has even filed criminal charges against the executives and managers of companies employing these workers. Some of these companies have been under investigation for months.
The upshot of this renewed vigilance is that employers need to get ready now, so that they will be prepared when Immigration officials come knocking on the door. There are several steps you can take to protect yourself in the event of an ICE raid or audit.
Your main focus should be your I- 9 documents. These are the papers that verify the employment eligibility and identity of all of your employees. Employers are required to complete these forms for all employees, including citizens.
We recommend doing the following:
Do an internal I-9 audit now. Don?t wait for Immigration officials to raid your workplace or to send you a letter demanding to inspect your I-9 forms within 72 hours. Be prepared and review them now. Compare your payroll with your I-9 documents and make sure that you have an I-9 form for all employees, and that they have all been filled out correctly and completely.
Centralize the I-9 process. Train one or two employees in the technical process of filling out I-9 forms. Then put them in charge of always completing the I-9s, instead of random supervisors who may not be familiar with the process.
Do not put the I-9s in the employee?s personnel file. Keep the I-9 documents in a separate file. You don?t want to have to turn over your employees? personnel files to ICE, since they contain privileged information. If you would like, you can put a copy of the I-9 in an employee?s personnel file, but always keep the originals separate.
Always examine the original documents, not copies. It is critical that you examine the original document, green card, driver?s license, or social security card, not a copy.
Copy the front and back of all documents that were examined, and attach these copies to the I-9. Although employers are not legally required to make a photocopy of the documents that they examined, doing so demonstrates the employer?s good faith. Furthermore, if questioned, the employer can point to what documents he relied upon, even if the documents ultimately prove to be fraudulent.
Establish a written policy that fraud in the employment application process will be grounds for termination. By doing so, the employer will clearly have the right to terminate an employee if he later discovers that the employee submitted fraudulent documents to obtain employment.
If you receive a Social Security mismatch letter, contact your attorney before responding. The Social Security Administration is sending thousands of Social Security mismatch letters to employers, informing them that there is a ?mismatch? in the names and Social Security numbers of some of the employer?s employees. There may be serious legal consequences for the employer in this regard. Therefore, immediately contact experienced legal counsel before responding.
Immigration officials are taking these workplace raids very seriously. You should, too. Implementing the above will show that you, as an employer, have made all reasonable attempts in good faith to adhere to current immigration law. A little advance preparation will go a long way.