January 09, 2009

8 Secrets to Avoid Immigration Hazards to Your Business

Headlines of raids conducted by the Department of Homeland Security’s Immigration and Customs Enforcement Agency (ICE) signal employers that immigration compliance must be a priority. Develop a comprehensive immigration compliance plan with these 8 secrets to help guide you through the immigration maze and, in case of an ICE audit, prove your intent to comply with immigration rules.

Secret #1 – Put it in writing. Develop an easy to follow written immigration policy including the basics of Form I-9 preparation, the I-9 storage and retention rules and a summary of both the federal and state immigration rules. Include procedures to investigate any claims of unauthorized employment or fraudulent documents submitted during the I-9 process.

Secret #2- Train, train, train! While a well written training manual is a great roadmap, you must take it for a test drive to know whether it will lead you to successful compliance. All employees responsible for hiring or completing the I-9 forms should be trained and re-trained at least once a year.

Secret # 3- Audit – check and double check! Employers must periodically verify their I-9 forms are in proper order and personnel are complying with the I-9 requirements. A systemized audit is the best way to do this. An internal self audit of the I-9 forms by experienced HR managers on monthly, quarterly or bi-annual basis is recommended. Also, hire an immigration attorney to conduct an I-9 audit annually. The attorney will know how to identify, edit and correct I-9 form errors and recommend improvements for I-9 compliance and training.

Secret #4 – Enforce the rules. Your company is not protected by a compliance policy that is not followed. Require individuals with I-9 oversight to strictly compliance with your policy and hold them accountable if they don’t.

Secret #5 – Investigate reports of violations. Employers must develop and implement a nondiscriminatory, consistent, and effective process to investigate credible reports from individuals who allege unauthorized employment, document fraud or identity theft. Considering that ICE audits are often triggered by “tips” from concerned citizens, a prudent Employer must take seriously any tips it receives.

Secret #6 – Require I-9 compliance from subcontractors. A company is not required to monitor I-9 compliance of its independent contractors unless the company knowingly uses the contractor to hire unauthorized workers or knows the contractor hire unauthorized workers. To avoid any charge that your company knew of sub-contractor violations, take steps to use only compliant contractors. With the help of an immigration attorney, a cautious business may include contract language holding the contractor responsible for their own immigration compliance and reserving the right to cancel a contract if the contractor is found to have violated immigration rules.

Secret # 7 – Use E-Verify with caution. E-Verify is an internet-based program that was established to allow Employers to verify workers’ employment eligibility with the DHS and SSA. E-Verify is not a substitute for the I-9 process and does not guarantee compliance or provide your company with protection against audits or claims of discrimination. Before taking any action against an employee based upon E-Verify results, consult with an immigration attorney.

Secret # 8 – Consult an immigration attorney before taking any action against an employee. An Employer must balance both the verification and anti-discrimination rules of immigration law. While there is never a guarantee against a lawsuit or prosecution, Employers must consider both these rules to avoid any claims of misconduct. A knowledgeable immigration attorney can help you manage these risks, update you on any changes in the law, and advise you as to the lawfulness of termination before you take that step.

-By Ann Massey Badmus