IMMIGRATION ISSUES
Immigration related liabilities are an increasing concern for employers. In 2006, the number of employers and employees arrested in immigration raids quadrupled. We anticipate that immigration enforcement will continue to increase.
On December 12, 2006, Immigration and Customs Enforcement conducted one of its largest raids in history by arresting 1,282 workers at six Swift & Company meat processing plants, including one in Hyrum, Utah. Due to the arrests, Swift lost 40% of its labor force and temporarily suspended operations at all six of its plants. The one-day raid resulted in approximately $20,000,000 of lost production.
One might ask how Swift could not have suspected that much of its labor force was undocumented. However, Swift, fearful of being penalized for hiring undocumented workers, had intensely scrutinized the documents of its workers – so much so that in 2001 Swift was forced to pay a $200,000 settlement to the Department of Justice for excessively scrutinizing the documents of individuals who looked or sounded “foreign.” Accordingly, employers are caught between two Federal agencies with opposing interests: ensuring that all workers are authorized for employment versus protecting those who are lawfully here from discrimination.
The Immigration Reform and Control Act of 1986 requires all employees to fill out an I-9 Form available at www.uscis.gov for all employees hired after November 6, 1986, regardless of their immigration status. The form consists of two portions. In Part 1, the employee attests, under penalty of perjury, that he or she is a citizen, lawful permanent resident, or alien authorized to work temporarily. In Part 2, employers are required to record that they have examined original documents from a specified list verifying the employee’s identity and eligibility to work. Employers must accept the documents if they appear “reasonably genuine” and relate to the person presenting the documents.
The I-9 must be completed within three days of starting work. The employer must keep the form on file for three years from the date of hire, or one year after the last day of work, whichever is later. Employers are not required to complete I-9s for independent contractors, but remain liable if they know that contractors are using unauthorized aliens to perform labor or services.
The Immigration Reform and Control Act of 1986 also prohibits any person or entity from knowingly hiring or continuing to employ an unauthorized worker. “Knowledge” may be either actual or constructive. Constructive knowledge is knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition. Failure by an employer to complete the I-9 would be an example of constructive knowledge on the part of the employer.
With the congressional debates continuing to include immigration reform as a “hot topic”, work-site enforcement will continue to intensify. We believe that any new immigration reform bills will likely impose a higher standard of due diligence on employers. With the Government’s renewed enforcement efforts, simple precautionary measures, such as internal audits and strict compliance with I-9 related regulations, are now more important than ever.
Written by H. Burt Ringwood
