There are an estimated 12 million illegal immigrants in America, making up about 5 percent of the workforce. According to the Pew Hispanic Center, illegal immigrants constitute 14 percent of construction workers. Some estimates conclude that unauthorized workers comprise an estimated 22 to 36 percent of the construction industry workforce. The nightly news regularly reports law enforcement actions by the Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), and other federal and state agencies. ICE has recently announced that it was targeting employers of illegal immigrants and that it would use criminal prosecution and forfeiture of assets to do so. In this climate, contractors and construction managers must bend over backward to comply with all immigration-related laws and regulations.
Overview
Pursuant to the 1986 Immigration Reform and Control Act (IRCA), all U.S. employers are responsible for verifying through a specific process the identity and work authorization or eligibility of all individuals, whether U.S. citizens or not, hired after November 6, 1986. Moreover, employers are not permitted under the law to contract for or employ the labor of an individual known to be ineligible for employment, and may be subject to civil and criminal penalties if they do. This article will identify the minimum required actions and responsibilities of employers and will identify online tools and programs provided by the federal government (E-Verify, SSNVS and IMAGE) to assist employers in satisfying their obligations.
The Form I-9
Employers are responsible for the completion and retention of Forms I-9 for all employees (with limited exclusions) hired for employment in the United States, regardless of citizenship or national origin. An employer must retain Forms I-9 for all employees either for (1) three years after the date of hire, or (2) one year after employment is terminated, whichever is later. All current employees, therefore, must have Forms I-9 on file with the employer. Upon request, all Forms I-9 subject to the retention requirement must be made available to an authorized official of the Department of Homeland Security, Department of Labor and/or the Office of Special Counsel for Unfair Immigration-Related Employment Practices for the Department of Justice.
What to Do When an Unauthorized Employee is Discovered
An employer who discovers that an employee has been working without authorization should reverify work authorization by allowing the employee another opportunity to present acceptable documentation and complete a new Form I-9. However, employers should be aware that, if they know or should have known that an employee is unauthorized to work in the United States, they may be subject to serious penalties for "knowingly continuing to employ" an unauthorized worker.
Constructive Knowledge
Knowingly hiring or continuing to employ unauthorized aliens is a serious violation that subjects the employer to civil and, where there is a pattern or practice of such violations, criminal penalties. In this context, the term "knowingly" includes not only actual knowledge but also constructive knowledge, which may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition. Constructive knowledge indicators may include, but are not limited to, situations where an employer: (1) fails to complete or improperly completes the Form I-9; (2) has information available to it that would indicate that the alien is not authorized to work, such as Labor Certification and/or Application for Prospective Employment; or (3) acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its workforce or to act on its behalf. An employee's foreign appearance or accent, however, is not a relevant factor.
Civil Penalties
ICE is authorized to conduct investigations to determine whether employers have violated the prohibitions against knowingly employing unauthorized aliens and failing to properly complete, present or retain Forms I-9 for newly hired individuals. If ICE believes that violations have occurred, ICE may issue a Warning Notice, a Technical or Procedural Failures Letter notifying the employer of technical or procedural failures in need of correction, or a Notice of Intent to Fine (NIF).
In cases where a NIF is issued, employers may request a hearing within 30 days of service of the NIF to contest the NIF before an Administrative Law Judge of the Office of the Chief Administrative Hearing Officer (OCAHO), Executive Office for Immigration Review, U.S. Department of Justice. Hearing requests must be in writing and filed with the ICE office designated in the NIF. If a hearing is not requested within the 30-day period, ICE will issue a Final Order to cease and desist, and to pay a civil monetary penalty. Once a Final Order is issued, the penalty is unappealable. If a hearing is requested, ICE will file a complaint with OCAHO to begin the administrative hearing process, which may end in settlement, dismissal or a Final Order for civil money penalties.
An employer found to have knowingly hired, recruited or referred for a fee, or continued to employ, an unauthorized alien shall be subject to an order to cease and desist from the unlawful behavior and to pay a civil fine ($275 to $2,200 per unauthorized alien for the first offense; $2,200 to $5,500 each for a second offense; and $3,000 to $11,000 each for third or subsequent offenses. Employers who fail to properly complete, retain and/or present Forms I-9 for inspection may be subject to a civil penalty of $110 to $1,100 per employee whose Form I-9 is not properly completed, retained, and/or presented.
Recently, ICE has begun using debarment as an enforcement mechanism as well. The Federal Acquisition Regulations (FAR) provide that contractors may be considered for debarment if they have been found to have either knowingly hired an unauthorized worker or to continued to employ an alien who is or becomes unauthorized. According to Julie L. Myers, Homeland Security Assistant Secretary for ICE, "By using debarment in appropriate circumstances, the federal government can avoid working with businesses that employ an illegal workforce and unscrupulously undercut their competitors to gain an unfair market advantage because of reduced labor costs. This is yet another tool that we believe will further ensure compliance with our nation's immigration employment laws." In September 2008, ICE entered seven companies, including four construction contractors, into the Excluded Parties List System (EPLS), which is a web-based system that identifies parties suspended, debarred, proposed for debarment or otherwise excluded from receiving federal contracts, certain subcontracts, and certain types of federal financial and nonfinancial assistance and benefits, and given 30 days to challenge their proposed debarment and immediate suspension from government contracting.
Criminal Penalties
Employers convicted of having engaged in a pattern or practice of knowingly hiring unauthorized aliens or continuing to employ aliens knowing that they are or have become unauthorized to work in the United States, after November 6, 1986 (e.g., expiration of work authorization), may be fined up to $3,000 per unauthorized employee and/or face up to six months of imprisonment. Persons who knowingly use fraudulent identification documents, identity documents that were issued to persons other than themselves, or false attestations for the purpose of satisfying the employment eligibility verification requirements may be fined and/or imprisoned for up to five years.
Federal Online Tools: E-Verify, SSNVS and IMAGE
E-Verify is a partnership between DHS and the Social Security Administration (SSA). U.S. Citizenship and Immigration Services (USCIS) oversees the program. Formerly known as the Basic Pilot/Employment Eligibility Verification Program, E-Verify is an Internet-based system that allows employers to electronically verify the employment eligibility of their newly hired employees. E-Verify is currently free and voluntary (except for certain federal [see Executive Order 12989, as amended June 6, 2008], state [e.g., Arizona, Georgia, Colorado, Oklahoma, and Missouri], and local government projects). According to USCIS: "E-Verify is currently the best means available for employers to electronically verify the employment eligibility of their newly hired employees. E-Verify virtually eliminates Social Security mismatch letters, improves the accuracy of wage and tax reporting, protects jobs for authorized U.S. workers and helps U.S. employers maintain a legal workforce." The Association of General Contractors of America (AGCA), through its Senior Director of Federal and Heavy Construction Division, recently objected to the mandatory use of E-Verify, stating in a letter to the General Services Administration (GSA) that its proposed rule implementing Executive Order 12989 "does not realistically consider the vast multitude of considerations employers encounter on a daily basis," and "may impose new liabilities on federal contractors and subcontractors without adequate protections," and "expands the current electronic employment verification system without addressing the underlying inefficiencies with that system." Currently, E-Verify allows online verification, based on a 425 million record database, of the information collected on the Forms I-9. Additionally, a photo-biometric feature has recently been added to allow employers to verify identification photos against USCIS's 14.8 million entry photo database. To sign up for participation or read more about the program specifics, visit www.uscis.gov/everify.
SSNVS (Social Security Number Verification Service), an online service through the Social Security Administration (SSA), allows employers to instantly verify up to 10 names and SSNs, or verify lists of up to 250,000 names overnight. The service is available to all employers and third-party submitters, but it can only be used to verify current or former employees and only for wage reporting (Form W-2) purposes. More information, and online sign-up, is available at www.ssa.gov/employer/ssnv.htm
IMAGE is an ICE program that combines the E-Verify and SSNVS tools with "best practices," training and tracking functions designed to assist and ensure employer compliance with employee verification requirements. In July 2006, ICE announced a joint government business initiative designed to build cooperative relationships that strengthen overall hiring practices, thus assisting in restoring integrity to the immigration system of the U.S. The name derives from the ICE Mutual Agreement between Government and Employers (IMAGE), which is entered into by all participants. IMAGE participants agree to: (1) complete a self-assessment questionnaire; (2) enroll in E-Verify; (3) enroll in the Social Security Number Verification Service; (4) adhere to IMAGE Best Employment Practices; (5) undergo an I-9 audit conducted by ICE; and (6) review and sign an official IMAGE partnership agreement with ICE.
Upon enrollment and commitment to DHS's best hiring practices, program participants will be deemed "IMAGE certified"— a distinction DHS believes will become an industry standard. DHS further hopes that the results of the IMAGE program and participation in IMAGE by partners in industry will serve to guide DHS in shaping future worksite enforcement policy and legislation. In June 2008, ICE initiated an "associate member" category in the IMAGE program for employers seeking to join the program, but who would prefer a two-year period of time in order to complete all requirements for full IMAGE membership.
Participation in IMAGE does not preclude criminal or civil enforcement actions, should information be developed and verified that participants are engaged in illegal practices. ICE's website, however, claims that "Following the prescribed steps of IMAGE could lessen the likelihood that your company is found in violation. IMAGE places an emphasis on self-policing. It can enhance your corporate image by associating it with sound hiring practices, and help to secure the homeland by reducing opportunities to inadvertently hire unauthorized workers. IMAGE participation may be considered a mitigating factor in the determination of civil penalty (fine) amounts should they be levied."
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
