Worksite enforcement issues for employers.

• Author: Gladstone, Michael H.

"NOVEMBER 6, 2006, marked the 20th anniversary of the Immigration Reform and Control Act of 1986 (IRCA).... [IRCA] has created a troubling situation where employers are forced to walk a fine line between scrutinizing documents too little or too much.... Enforcement by ... U.S. Immigration and Customs Enforcement (ICE) has waxed and waned depending on the political winds...." (1) The political winds since 2006 have whipped to a gale for employers as changing patterns in ICE enforcement have dramatically increased the challenges associated with compliance with the immigration laws. Knowledge of federal regulation is the key to an employer's successful navigation of worksite enforcement under the Immigration and Nationality Act. This article surveys the main worksite enforcement issues that employers face when employing aliens in the United States. Major topics of relevance to employers include proper documentation, inspection and audit procedure, and the civil and criminal penalties and the prosecutions associated with them.

1. Authorized Employment and the 1-9

Section 274A(a) of the Immigration and Naturalization Act (INA) (2) states:

It is unlawful for a person or other entity - (A) to hire, or to recruit or refer for a tee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3)) with respect to such employment....

(2) Continuing employment.-It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.

The implementing federal regulation,

8 C.F.R. [section] 274a, elaborates the requirements of the statute. 8 C.F.R. [section] 274a. 12 identifies the classes of aliens authorized to accept employment in over forty-two paragraphs and sub-paragraphs. Beyond the broad distinction between immigrant and non-immigrant alien categories provided by this regulation, this section is impenetrable to the non-immigration-savvy practitioner or employer. No law requires employers to master any particular level of immigration law knowledge for work authorization determination purposes, much less memorize the characteristics of the documents which establish the work authorized categories of aliens.

Employers must complete an 1-9 for all new hires after November 6, 1986. (3) New "hires" does not include employees of independent contractors or sporadic domestic workers. (4) In the first section of the form, the new hire must attest under oath to his/her US citizenship, permanent residency status, or authority as an alien to work. (5) In the second section, the employer must record and attest to having examined documents from a list of acceptable documents contained on the form. (6) The document list identifies specific documents which alone are sufficient to establish the employee's identity and work authorization (List A), or which in combination establish identity and work authorization (Lists B and C, respectively). The employer's representative must also affirm under oath that the documents appear genuine on their face and that to the best of his/her knowledge the new hire is authorized to work in the United States.

Employment is, thus, permissible if 1-9 documents appear both reasonable on their face and to relate to the person who presented them: "A person or entity has complied with the requirement of this paragraph with respect to examination of a document if the document reasonably appears on its face to be genuine. If an individual provides a document or combination of documents that reasonably appears on its face to be genuine and that is sufficient to meet the requirements of the first sentence of this paragraph, nothing in this paragraph shall be construed as requiring the person or entity to solicit the production of any other document or as requiring the individual to produce such another document." (7)

The employer may not demand specific documents from a new hire, and must accept documents presented which appear genuine and to relate to the employee. It is illegal to discriminate in employment decisions on the basis of national origin. An employer may not take English language capability, accent, or "foreign appearance" into account when assessing the employee's authorization to work. (8) Detailed rules apply to when the 1-9 form is completed, (9) how long it must be retained, (10) and how it may be stored. (11) The current form has a revision date of August 7, 2009, and is available along with summary completion instructions at ICE's website. (12) Under 8 C.F.R. [section] 274a, employers are not required to complete 1-9s for contract employees or the employees of independent contractors. However, this aspect of the regulation has eroded under the federal E-verity rule, which imposes verification responsibility under E-verify on federal contractors as to their sub-contractors. Corporations in the private sphere are beginning to require downstream affirmation and verification of compliance with employment verification rules in their vendor contracts. Where an employer knows that a contract labor agency or independent contractor is using unauthorized labor, however, the presence of the independent contract will be no defense to knowing unauthorized employment the contracting employer will be treated as the employer. (13)

1. Paperwork Violations

   Paperwork violations occur when the employer fails to follow the detailed requirements regarding completion of the 1-9. Absent a pattern or practice of form errors, when technical or procedural failures are pointed out to an employer and the employer corrects them within 10 days, there will be no penalty under the good faith defense to paperwork violations. (14)

2. "Knowing Employment"

   Under 8 U.S.C. [section] 274A, "knowing" employment of unauthorized persons is forbidden. The statute does not use--much less define--the term "constructive knowledge". 8 C.F.R. [section] 274a(1)(1), however, defines 'knowing' to include constructive knowledge:

   (1) The term knowing includes not only actual knowledge but also knowledge which may fairly be interred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition. Constructive knowledge may include, but is not limited to, situations where an employer:

   (i) Fails to complete or improperly completes the Employment Eligibility Verification Form, 1-9;

   (ii) Has information avail-able to it that would indicate that the alien is not authorized to work, such as Labor Certification and/or an Application for Prospective Employer: or

   (iii) Acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf.

   (2) Knowledge that an employee is unauthorized may not be inferred from an employee's foreign appearance or accent. Nothing in this definition should be interpreted as permitting an employer to request more or different documents than are required under section 274(b) of the Act or to refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual.

3. Constructive Knowledge

   Historically, "constructive knowledge" was founded on proof ordinarily and logically connected to unauthorized employment, that is reliable evidence of a tact or circumstances which reasonably compelled a conclusion of unauthorized status. Examples of constructive knowledge included the employer's failure to complete the 1-9 or substantial improper completion of the 19, employee confession of unauthorized status, a request by the employee for immigration sponsorship, failure to follow up on a known expired work authorization document, a government report indicating the employee is unauthorized, and acceptance for 1-9 of documents grossly and obviously not genuine (gross errors, misspellings, sham appearance). (15)

   Since August 2007, developments have broadened the "soft proof' sufficient in the government's view to prove the hard fact of knowing employment. Examples of such soft proof include: receipt by employers of SSA mismatch letters and failure to take what it views as reasonable steps to clarify (failed no-match rule); treatment of 1-9 paperwork errors as evidence of guilty mind; and heightened attribution of genuine-document-recognition competence to employers. A troubling new practice is the use by ICE and U.S. Attorneys of forbidden facts--forbidden to the employer under the Act and 8 C.F.R. [section] 274a.1(1)(1)--such as language, foreign appearance, accent, and skin color to aver 'knowing' employment under federal criminal statutes to extract plea bargains and forfeitures. Similarly disturbing is the practice of obtaining damning testimony through deceit, or cooperation purchased with promises of deferred deportation and work authorization.

   A good faith defense to knowing employment allegations is available and rests on the employer's ability to show good faith compliance with the 1-9 process. If the employer has done its job but the employee(s) falsely swore and produced false but genuine appearing documents, there should be no liability. INA Section 274A(3) states: "A person or entity that establishes that it has complied in good faith with the requirements of subsection (b) with respect to the hiring, recruiting, or referral for employment of an alien in the United States has established an affirmative defense that the person or entity has not violated paragraph (1)(A) with respect to such hiring, recruiting, or referral." The corresponding regulation interpreting the INA clarifies:

   An employer or a recruiter or referrer for a fee for employment who shows good faith compliance with the employment verification requirements of Sec...