Attorney James Aldrich outlined the steps employers should follow to prepare for an inspection by U.S. Immigration and Customs Enforcement.
The increasingly complex world of employment verification, Social Security regulations, and U.S. Immigration and Customs Enforcement (ICE) was the focus of James Aldrich’s session, “The ICE Man Cometh and How to Be Ready for Him.” Aldrich, an attorney with Dickinson Wright PLLC in Bloomfield Hills, Mich., focuses on the corporate aspects of U.S. immigration law, and he was on hand to supply advice to business owners regarding a variety of employment issues.
A Social Security number is not needed to hire a candidate or pay a new employee, said Aldrich, but the employee must apply for a Social Security number within seven days of beginning to work for taxable income. “Employees can begin work without an SSN,” said Aldrich. “However, newly hired employees must present the employer with the Social Security card if they have one or the SSN if the card is not available.” If they have applied for an SSN but have not yet received one, they must provide the receipt showing proof of applying for an SSN or prepare a signed, written and dated statement providing the information required on form SS-5, the form used to apply for an SSN.
A Social Security card is one of the items included on the lists of documents that can be used for employment verification contained in the form I-9, but Aldrich cautioned that employers couldn’t mandate that an employee produce a specific document from these lists. “Employers are prohibited from requiring a Social Security card as part of the I-9 employment eligibility verification,” he said.
Aldrich reviewed the requirements of the Immigration Reform and Control Act of 1986, which applies to all new hires after Nov. 6, 1986, including U.S. citizens. It mandates that the employer or the employer’s representative examine the original documents and accept them if they “reasonably appear” to be genuine. “Employers are not required to be document experts,” said Aldrich, who noted that employment verification is not required of independent contractors.
It is unlawful for employers who knowingly hire an alien who is unauthorized to work in the United States, indicated Aldrich, who outlined penalties for unlawful hiring and failing to follow regulations regarding I-9 forms and verification records.
Aldrich reviewed some enforcement acts by ICE, including the April 2006 raid on a Houston-based pallet services company, which resulted in the arrest of seven managers and 1,187 of the company’s illegal alien employees in 26 states. The managers were charged with harboring illegal aliens in order to profit from them.
“The penalty for harboring is up to 10 years in prison and a fine of up to $250,000 per illegal worker,” he said. An employer must be issued a Notice of Inspection (NOI) to review payroll and Form I-9 verification records, noted Aldrich. While the NOI may be provided in advance or at the time of the raid, employers must be given three days notice of the government’s intention to conduct an inspection. “Employers must not destroy evidence,” Aldrich stressed. “Do not falsify evidence.” Steps to take to prepare for an inspection outlined by Aldrich included reviewing the NOI, reviewing I-9 records, correcting any errors in I-9 forms, and dating and initialing any corrections. It is also possible to seek out a court order on the enforcement of the subpoena, he indicated.
Aldrich cautioned that all employers should seek legal counsel for any of their own specific employment verification matters, and he advised owners to compile a list of all employees, including date of hire and termination, for their attorneys. He had these general tips for employers facing an inspection:
- Accompany the inspector.
- Do not give consent to the government inspector to go beyond the limits of the NOI.
- Make copies of all records taken by the government inspector. “Get a receipt for every document they take,” Aldrich advised.
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