The Integrity News
"objective risk management news"
Vol. XVI No. 6
ISSN 1081-2717
September 14, 2007
( see "How We Help You" below )
Recall, EVERY employee whether U.S. Citizen or
otherwise, must have a properly completed and
current Form I-9 in their personnel file available
for Federal Government inspection. In fact,
depending upon what rules are finally activated,
you may be required to transmit those I-9 forms,
or a summary list of them, to the Government.
In our last issue, we outlined the new enforcement
rules for Employment Eligibility Verification IF the
Immigration Reform bill became law. Congress
could not agree on a bill to send to the President,
so one was not signed into law.
This week we were about to send out a new issue
outlining the new Final Rule, by the Department of
Homeland Security ( DHS ), Division of U.S.
Immigration and Customs Enforcement ( ICE ),
published in the Federal Register, Vol. 72, No 157,
on August 15, 2007, to take effect September 14, 2007.
Then, on Friday, August 31, 2007, U.S. District Judge
Maxine Chesney in San Francisco, issued a temporary
restraining order that prohibits DHS/ICE from
enforcing the new Final Rule. A hearing is set for
October 1, 2007 to consider the arguments of the
AFL-CIO lawsuit, and a separate suit by the American
Civil Liberties Union ( ACLU ) which alleges that the
DHS does not have the authority to enforce immigration
laws and would be misusing the Social Security
Administration ( SSA ) database which is the source of
the underlying "no-match" letters to employers, which
can then lead to letters to employers from the DHS/ICE
each called a "Notice of Suspect Documents".
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Employment Eligibility Verification is being pursued
by the Government and below is a Brief Review, some
Items To Think About, and How We Help You.
The Immigration and Nationality Act of 1952 ( INA )
outlined record keeping requirements for hiring any
person whether a citizen or alien. The Immigration
Reform and Control Act of 1986 ( IRCA ) sought to
end unauthorized employment by imposing penalties
on employers who knowingly hire or continue to
employ aliens not authorized to work in the U.S.
The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ( IIRIRA ) amended the
IRCA by reducing the number of acceptable documents
for completion of the Form I-9 ( which itself was last
revised 5/31/05 ).
The Department of Homeland Security now publishes
the Employer Information Bulletin: "Penalties for
Prohibited Practices." The new Civil fines, and the
Criminal fines and imprisonment, for various violations
are listed. One of the sections is titled "Failure to
Comply with Form I-9 Requirements." It says in part:
"In determining the amount of the civil penalty, the
following factors are considered: size of the business
of the employer being charged; the good faith of the
employer; the seriousness of the violation; whether
or not the individual was an unauthorized alien; and
the history of previous violations of the employer."
The Government is planning on using fine and fee
revenue to pay a portion of the enforcement costs.
The urgency of U.S. anti-terrorism efforts is driving
this topic of Form I-9 enforcement. When enforcement
begins in earnest, you must be familiar with the safe
harbor rules, the requirements, the procedures, and
the kinds and levels of penalties for failure to comply.
The Government understands document fraud. In
the coming months, "The Administration will publish
a regulation that will reduce the number of documents
that employers must accept to confirm the Identity
and Work Eligibility of their employees". This is
intended to make it easier for employers to be sure
that the documentation is authentic when it is
presented by the employee for completing the Form I-9.
The Government also plans to expand the Employment
Eligibility Verification System, now called E-Verify, so
that employers have an online way to verify employment
eligibility --- BUT, only for new hires
just ON your payroll.
The Government will require all Federal Contractors and
Federal Vendors to use E-Verify. However, from the DHS
website: "Participation in E-Verify does not provide
protection from worksite enforcement." The phrase
"Just On" means only within the first 72 hours.
The political interests that pressure Congress have made
sure that an employer CANNOT use the new system for:
(1) pre-employment screening, (2) checking previously
hired employees, or (3) re-verifying employees who have
temporary work authorization. The way that they control
that, is to automatically compare the dates of your E-Verify
inquiries with the dates of your past and current payroll
submissions.
The problem with only verifying employment eligibility
AFTER you hire a person is the possibility of a Wrongful
Termination lawsuit.
Because the new system could ONLY be used for verifying
the employment eligibility of new hires just ON your payroll,
if the system identifies a person whom you must not continue
to employ, you must fire them.
That could set you up for the
possibility of a Wrongful Termination lawsuit. You will not
get your time and legal bills reimbursed by the Government.
You want to continue to do what you do now, and find out
BEFORE you hire someone if "Joey is really Joey".
That
is why since 1991, we have included in the report for EVERY
request for an SSN Verification, ID Verification, or Personal
Credit History, the results of washing that request against
the current quarter's Master Tape from the Social Security
Administration. If any of the Government's 17 classes of
fraud appear on the SSA Master Tape for a given person,
they will also appear, each in a starred box, at the top of
your report for that person.
You also want to think about the concept of "Constructive
Knowledge", which is "knowledge that 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". The reason that this is
important is that if DHS/ICE determines that your company
had Constructive Knowledge of an illegal event, the penalties
automatically increase in a very big way.
When you use our client interface to gather Job Apps,
perform Background Checks, conduct Testing, maintain
Employee Files, and/or prepare your Payroll, a secure
file is automatically built for each person, that only you
can access. From those individual files, you can conduct
additional inquiries or prepare numerous reports.
One of the reports that you can easily prepare is a Form
I-9. When you select "Form I-9", the form appears with
all of the person's data accurately filled in for Section 1.
You can then print the form and have the person fill in
Section 2. Or, you can enter their Section 2 data online,
and print the Form I-9. In either case, with Section 2
complete, the printed form is ready for signatures.
In all cases, your I-9 forms will have original signatures,
and in Government vernacular, those are "wet" signatures.
If you want to store an image of the signed Form I-9 in the
person's online file, you can just fax it to our image server
using the cover sheet provided, and an image of it will be
automatically stored online with their other reports. You
can always recall and print any personnel report images.
If there is ever any doubt in your mind about the
authenticity of any documents presented to you for the
completion of an I-9 form Section 2, you can ask us to
verify the documentation as you do now. We regularly
help you determine if "Joey is really Joey".
If you need to modify a person's Form I-9 for any
number of reasons, you just click on it and make the
changes. Our network keeps an ongoing log of all
prior versions of each person's I-9 forms, all the data
that was in each form, and a time and date stamp
recording of when the new Form I-9 was created
and which logon created it.
If you want to have all of your I-9 forms stored in our
network, but some of your employees have been with
you longer than you have been using our services,
you can add the other employees' data using the
Personnel Review interface with just another click.
The beauty of having all of your employee I-9 forms in
one place is that you are able to print exception reports
to see who you need to have complete a current form.
Further, with all of the I-9 forms in machine-readable
form, you can transmit any mandatory summary reports,
or forms, to the Government when that is required.
If you want to create a Form I-9 for an employee, and
send them an email to have them complete Section 2,
our network provides a custom email function for you
to use to notify them. Then, in preparation for review
of their documents with you and both of you signing
the Form I-9, they can securely use either their PC to
complete Section 2, or our network allows them to
complete their Section 2 using any Internet enabled
cell phone or PDA. In either case this gives you the
option, before you have to meet to sign the I-9 form, of
checking the authenticity of what they intend to present
to verify their Identity and Employment Eligibility.
Given that the Government is going to reduce the
number of documents that you must accept as proof
of identity and employment eligibility, we will always
have the current Form I-9 version available for you.
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All of our Form I-9 capabilities have been tuned to help
you cope with the coming enforcement. Employers have
152,000,000 employees in the U.S. to deal with, and that
much work needs to be facilitated with high productivity
tools, and secure records, as much as possible.
Remember that we are not lawyers and we do not give
our clients legal advice. While we advise you to consult
your counsel, especially in matters related to unauthorized
aliens, you can always call
The Integrity Center, Inc.
to discuss topics anytime at (972) 484-6140.
Helping you with your Risk Management and HR Automation is what we do.
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