Voluntary I-9 Audits likely to become a requirement.

Employers are placed in a very difficult position under immigration law. While you are required to obtain documentation from a potential employee of the potential employee's citizenship and right to work in the United States, you are prohibited from discriminating against potential employees on the basis of national origin. Thus, while you are required to examine two pieces of official identification in connection with the completion of Form I-9, that same form expressly states that you cannot specify which documents you will accept.

Two developments in the immigration law area are causing employers a great deal of concern: the increase in so-called "I-9 Audits” and the Social Security Administration's resumption of the "No-Match" Letter Program. The I-9 audit program is primarily lead driven, with potential leads coming from disgruntled employees, competitors, and the public. Under this program, Immigration and Customs Enforcement (ICE) is auditing employers suspected of cultivating illegal workplaces by knowingly employing illegal workers. These audits focus on whether the Form I-9 has been properly completed for all employees and also whether and to what extent an employer has systems in place to ensure compliance with the Form I-9 verification process.

The "No-Match" Letter Program was resumed earlier this year after a two-year suspension of the program due to lawsuits over proposed regulations issued by the Dept. of Homeland Security. A no-match letter is a letter to an employer, advising the employer that the Social Security number reported by an employee does not match that employee’s name. The Social Security Administration resumed sending letters in April of this year. If an employer receives such a letter, it is required to perform some due diligence to determine the possible cause of the mismatch and to give the employee a reasonable opportunity to resolve the problem.

It is fairly clear that the employers who are facing significant problems with ICE and being assessed significant fines are those employers who lack reasonable systems to comply with the law. Absent internal systems for compliance, the government's position is that the employer is fostering an illegal work environment.

Employers are expected to take affirmative steps to comply with the law by developing internal systems to promote compliance. If an employer has an internal compliance program and follows the program, it is far less likely to be the subject of an enforcement action.

A compliance program is simply written procedures for how you intend to process Form I-9 and how you make sure that your files are complete. Such a program should also include a procedure for dealing with “no match” letters received from the Social Security Administration. However, it cannot be emphasized enough that merely having a compliance program is insufficient; the program must be followed in order to protect the employer.

The E-Verify Program

E-Verify is an Internet-based system that allows an employer, using information reported on an employee's Form I-9, to determine the eligibility of that employee to work in the United States. In several educational programs, speakers often cite the following advantages to this program:

• Participation avoids a presumption of actual knowledge or willful disregard of immigration law, the basis for the government assessing penalties against an employer.

• Participation shows greater awareness of responsibilities and evidence of corporate compliance.

• Over time, some feel that the use of the E-Verify program will actually stabilize the workforce.

However, there are disadvantages:  

• The E-Verify program is not particularly helpful if the information collected for the Form I-9 is deficient.

• E-Verify does have an error rate.

• The Agreement that must be signed to participate in the program includes promises of cooperation with the government that may exceed the statutory requirements. In other words, you may be agreeing to do more than you are required to do by law.

On balance, we think participation in the program is a good idea. It is quite likely that the program will become mandatory over time. (It is already mandatory in some states.) It’s unfortunate that the immigration controversy is resulting in more work for employers rather than better government enforcement of the law.

Michael P. Coyne is a founding partner of the law firm Waldheger Coyne, located in Cleveland, OH. For more information of the firm, visit: www.healthlaw.com or call 440.835.0600.