Worksite Raids Over Illegal Aliens Expected To Continue

By J.J. Smith, SHRM, June 28, 2007

LAS VEGAS — The outcome of immigration reform legislation being considered by Congress will not affect the Department of Homeland Security's (DHS) policy of increasing worksite enforcement to crack down on companies that hire illegal aliens, an immigration lawyer said June 25 at SHRM's Annual Conference and Exposition.

"With or without the bill there is a big step forward in enforcement," said Montserrat Miller, an immigration lawyer with Greenberg Traurig in McLean, Va., at a concurrent session on "worksite enforcement." DHS is seeking the ability to detain up to 31,000 illegal aliens per day, she said.

More demands are being placed on employers, who are now being held accountable for violating "constructive knowledge," which alleges that a company knowingly hired or continues to employ illegal aliens, Miller said.

To avoid being accused of "constructive knowledge," employers should fill out Form I-9 accurately, she said. The errors committed by companies when completing Form I-9 are consistent across industries, she added. The most common Form I-9 errors are:

• An incomplete form.
• No check marks in the boxes where an employee indicates if he or she is a resident or authorized to work in the United States.
• Not completing the form within three days of hiring.
• Not providing documents requested on Form I-9.
• Not photocopying the documents provided.

Companies need to ensure that new employees provide those documents within three days of hire, but if a company has not met that deadline, do not backdate a Form I-9 that is completed later, Miller said. If the deadline is missed, the employee should complete the form, and, unless you have a grossly incorrect I-9, go ahead and supply the documents from the appropriate column, she said. With a late form, an HR manager should make clear that there is no cover-up, she said.

Companies can resolve all of these problems by implementing a consistent policy for Form I-9, Miller said. Many employers just do not complete the form, or gloss right over the boxes that need to be checked.

When it comes to providing documents requested under columns "A," "B" or "C" of Form I-9, an employer cannot require a new employee to provide documents listed under each column, Miller said. They should provide documents listed under column "A" or a document each from columns "B" or "C," but not all three.

Many companies do not photocopy the documents and some companies photocopy only some documents, but not others, Miller said. Companies should photocopy all documents, she said.

These practices should be implemented consistently, Miller said, to avoid being accused of discriminating against some new employees, she said. "Keep the same policies for everyone," she said.

While not a Form I-9 violation, one of the most common, but much more serious, violations is non-compliance of a "no-match" letter from the Social Security Administration (SSA), Miller said. If a company receives a no-match letter and the employee does nothing to resolve the situation, after 60 days the company is required to terminate that employee. "If you don’t, that’s constructive knowledge," she said.

J.J. Smith is manager of the SHRM Online Global HR Focus Area.