New Regulations
for Employing Immigrant Workers

Hello Again,

Right now is the best time to make sure you are up-to-date with all of the mandatory labor publications and procedures. Remember, W-2’s have to be mailed by January 31, 2008.

This year there are also updated regulations regarding the employment of immigrant workers. The Immigration and Nationality Act (INA) includes eligibility, verification and nondiscrimination provisions, which apply to all employers.

These provisions focus on proper use and completion of the current version of the Employment Eligibility Verification Form (I-9). You should have started using the current form I-9 by December 26, 2007. If you need additional information on the form, the U.S. Citizenship and Immigration Services (USCIS) Website has links to the forms and to the current “Handbook for Employers”. You can also find valuable employer information online at:

• U.S. Department of Labor
• U.S. Equal Employment Opportunity Commission
• Utah Department of Workforce Services
• The Employers Council

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Small Biz  Partners & Resources

- SCORE -- Provides counseling to small businesses

- Ogden SCORE - E-mail
ogdenscore158@aol.com

- Salt Lake SCORE - Chapter 0049
310 South Main St., N. Mezzanine, Salt Lake City. Phone: (801) 746-2269; Fax: (801) 746-2273; Email: mallen@slcscore.com

- Wayne Brown Institute -- Runs the oldest and most successful non-profit venture accelerator program in the country, helping technical entrepreneurs from every social economic level raise money for their businesses.

- Small Business Development Centers
-- Provides counseling and training to small businesses.

- Small Business Administration -- Provides information about small business (Click here for Utah SBA)

- Utah Micro Enterprise Loan Fund -- Provides counseling and funding for small business

- The Pete Suazo Business Center -- Provides counseling and training for Hispanic/Latino business

- Utah Business.gov -- Provides online access to Utah Government services; one stop shop business registrations

- Export.gov -- Provides information on how to export your product.

Feature

Is Your Business Compliant With New Employment Eligibility Requirements?

The U.S. battle against immigration document fraud and aggressive enforcement of immigration laws has made accurate employee documentation an imperative.

Since the U.S. Citizenship and Immigration Service’s revisions to the Employment Eligibility Verification Form, or I-9, took effect December 26, 2007, employers are now required to complete a Form I-9 for each new-hire. New employees have three days to provide documents that prove they are lawfully eligible to work in the United States and its territories. (Existing employees whose old I-9 files are still intact do not need to complete the new form.)

Monica Whalen, president and CEO of The Employers Council, a regional, non-profit organization providing human resources support to more than 500 member businesses, says the Immigration Reform and Control Act (IRCA) mandates that U.S. employers verify the employment eligibility status of newly hired employees and makes it unlawful for employers to knowingly hire or continue to employ unauthorized workers. “The key word,” according to Whalen, “is to knowingly hire or continue to employ unauthorized workers, which is illegal.”

Knowing can be defined as actual knowledge or "constructive knowledge” depending on the circumstances. In a final rule that became effective September 14, 2007, the Department of Homeland Security (DHS) added examples of constructive knowledge, including failure to take reasonable steps after receiving a “no-match” letter from the DHS or Social Security Administration (SSA).

“A “no-match” letter is a letter to an employer from the SSA stating that a name or Social Security number (SSN) submitted for an employee does not match SSA’s records, or a letter from the DHS notifying an employer that the immigration-status or employment-authorization documentation presented or referenced by the employee in completing Form I-9 is assigned to another person or is unassigned,” according to Whalen.

Nonetheless, an employer will be considered to have taken reasonable steps, and receipt of a “no-match” letter will not be used as evidence of constructive knowledge if the employer takes these certain actions:

(A) Receipt of a “No-Match” Letter from the SSA:

1. Check employment records, within 30 DAYS.
2. If the discrepancy resulted from a typographical, transcription or similar clerical error:


a. Correct the error and inform the SSA of the correct information (in accordance with the letter’s instructions, if any).

b. Verify with the SSA that the corrected information matches SSA records. Document the manner, date and time of the verification and store the record with the employee's Form(s) I-9.

c. If it is necessary to correct information, the prior Form I-9 may be updated or a new Form I-9 completed (and retained with the prior Form I-9) – but do not perform a new Form I-9 document review process.

3. If no clerical error is found, PROMPTLY ask the employee to confirm the accuracy of the name and SSN.


a. If not accurate according to the employee, follow the same procedure as described in step A2 above to correct the error, inform the SSA of the correct information (in accordance with the letter’s instructions, if any), verify the corrected information with the SSA, and document the process.

b. If accurate according to the employee, ask the employee to resolve the discrepancy with the SSA. Advise the employee of the date the letter was received from the SSA and explain that the discrepancy must be resolved within 90 DAYS of the date the letter was received.

4. If still unable (within 90 DAYS of receiving the letter) to verify with the SSA that the employee's name and SSN match SSA records, complete a new Form I-9 within 3 MORE DAYS (within 93 DAYS of the date the letter was received from the SSA), as follows:


a. Use the same procedures as if the employee were newly hired, except that:
i. Do not accept the original or a receipt for a replacement of a document that is the subject of any “no-match” letter; and
ii. The employee must present a document that contains a photograph to establish either employment authorization or identity, or both.

b. The new Form I-9 must be retained with the prior Form(s) I-9.

(B) RECEIPT OF A “NO-MATCH” LETTER FROM THE DHS:

Within 30 DAYS, contact the local DHS office (in accordance with the letter’s instructions, if any) and attempt to resolve the issue. If still unable (within 90 DAYS of receiving the letter) to verify with the DHS that the disputed document is actually assigned to the employee, complete a new Form I-9 within 3 MORE DAYS (per paragraphs A.4.a. and A.4.b. above).

Whalen says if a no-match issue remains unresolved, and identity and work authorization are not verified using a reasonable procedure, such as that described in this article, the employer must choose to either terminate the employee or risk that the DHS may find the employer had “constructive knowledge” that it was employing  an unauthorized worker. The penalty imposed on U.S. employers who are caught is from $250 to $2,000, while paperwork errors may receive a fine of $100 to $1,000.

Employers can take proactive measures to reduce the risk of being penalized for inadvertent immigration law violations by conducting an internal self-audit of I-9 forms. Click here to review The Employer Council’s I-9 Self-Audit Checklist or call for more information about The Council's audit service (801) 364-8479.

For further information, contact U.S. Immigration and Customs Enforcement (ICE) at 800.421.7105, or visit ICE’s comprehensive interactive Safe Harbor Information Center Website (that includes frequently asked questions).