Immigration Reform and the Employer

Even though, some companies may not take the issue of immigration and hiring illegal workers seriously, this session at SHRM's Employment Law and Legislative Conference this morning, may make one change their mind.

First, I want to give kudos to Stuart Brock, a managing member at HR Innovators, for conducting the best session I attended over the last 3 days. He discussed exactly what he said he would, he spoke with authority on the subject, and it was free from the fear-mongering that I have witnessed from other HR legal advisers.

As an HR professional, practicing good administrative procedures with immigration is a must. If one is not taking it seriously, here are some key points to think about:

The Obama administration has shifted the focus from prosecuting illegal workers to prosecuting those employers that hire illegal workers.  Not just owners are being targeted, but principles and officers in the companies, such as HR Managers.

It used to be, to the best of my knowledge, that you wanted to keep your I-9 folders outside of your personnel file.  This way if you were audited by one agency, such as the IRS, chances that they would contact the U.S. Immigrations and Customs Enforcement, was slim.  Not anymore.  These agencies are talking to each other.  In fact, this sharing of information between agencies is creating many of their leads for their investigations.

The use of E-Verify is still controversial.  SHRM does not endorse the use of it.  But Mr. Brock did recommend using it for his clients because they were not finding the discrepancies in the data that admittedly exist. 

Some other helpful advice that came from this session was as follows:

• Do an internal audit at least once a year internally
• Keep the number of HR representatives that fill out I-9's to a minimum and keep them regularly trained
• Civil fines are issued when there is not sufficient evidence for criminal prosecution. To determine how those are determined, one can review their enhancement matrix at www.ice.gov
• It's important to remember, using e-verify does not provide a company safe harbor from criminal fines and penalties
• To stay abreast, subscribe to the DHS rss feed if you are responsible for I-9's

One last point to make about this is that all of these rules are definitely being carried out.  In fiscal year 2008, there were roughly 500 notices of inspections of I-9's.  In July 2009 alone, 625 notices were issued.  In November 2009, 1,000 notices were issued.  According to Mr. Brock, another 1,000 more are being planned to be issued shortly. Thus, it's not enough to just casually fill out an I-9.  It's time to take eligibility to work in the U.S. much more seriously.