[Blogger's Note: Today's post brings a bit of holiday cheer from my colleague and I-9 expert, Nicole ("Nici") Kersey. I want to publicly thank her for allowing me a Christmas break from blogging, and for the delicious chocolates.
Also, there's still time to nominate Immigration's Winners and Losers for the 2012 Nation of Immigrators Awards -- The IMMIs.
All I Got for Christmas Was a Crumb-y Immigration Compliance Checklist
I was recently asked to provide a single tip/piece of I-9/E-Verify advice for employers as part of a holiday-themed post for another blog. I was happy to do it, but I felt like a kid sitting on Santa’s lap being told that I could only ask for one gift. If you’ve ever been in my closet, well, that’s creepy. But you would know, from the fact that I buy the same shirt in 3 different colors, that I am not good at choosing just one of anything.So when Angelo Paparelli asked whether I might give him the gift of a week off from blogging (he didn’t know I’d already sent him chocolates), I first wrote a lengthy piece about the day that I accidentally shaved off my eyebrow (then drew it back on with purple eyeliner), but I couldn’t find a way to make the story relate to immigration. Then I realized I was in that rare “wishing for more wishes situation.” I guess that makes Angelo the genie. Or Santa? I’ve mixed metaphors again. D’oh! (Dough?) I guess we will be leaving metaphorical cookies out for Santa this Christmas Eve. (Smart cookie, tough cookie … I plan to milk this for all it’s worth.) So my holiday gift to you: Ten of my greatest tips for avoiding liability for immigration-related violations. [Yes, I know it is one of the worst Christmas gifts ever, but I’m not rolling in dough, so that’s the way the cookie crumbles. And if you are my 2-year-old daughter and have suddenly developed the ability to read, do not fear (you smart cookie, you)! I splurged on something a little more fun for you.]
- Provide mandatory annual I-9 training to everyone involved in the I-9 process. This is the least expensive and most effective way to limit liability. Invest in good training by an attorney with I-9 expertise. See here for more.
- Don’t make the mistake of assuming that, because you know you don’t employ any unauthorized workers, you don’t face much risk in the event of an ICE inspection. I have handled cases in which ICE found zero unauthorized workers and imposed crippling fines for paperwork violations. I’ve also handled cases in which more than half of the workforce was found to be unauthorized, and no penalties were imposed.
- Do not assume that your I-9s are perfect. In my experience, the employer with perfect I-9s is a myth. In all likelihood, you have some I-9 errors in your (actual or virtual) filing cabinet. The key is finding out how much risk you face then doing a cost-benefit analysis to determine the appropriate level of remediation.
- Make sure you have a strong immigration compliance policy in place, that the policy reflects your corporate culture (a cookie-cutter policy is better than nothing, but the best policy is one that requires compliance and works for you), and that the policy is reflected in your culture (read: actually follow it). Ensure that team members are given responsibility for relevant aspects of the compliance policy and that their annual review process includes consequences for ensuring compliance (or for failure to do so). In the event of an ICE inspection, ICE may ask to see a copy of your policy. Having a good policy in place may help you to prove that any mistakes could be attributed to a “rogue” manager (and may thus help you avoid liability).
- In addition to a compliance policy, develop an investigation response protocol. This ensures that all team members know what to do & who to call (other than Ghostbusters) in the event of an ICE inspection or other immigration-related government site visit. For more, see here. Also consider sending Angelo a copy of Ghostbusters for Christmas [Editor's Note: Please don't!]; rumor has it, he has never seen this snickerdoodle of a film.
- Talk to an attorney to do a quick review of your operations to ensure that you are in compliance will the relevant E-Verify laws. Do not assume that, because you haven’t heard anything about a law affecting you, you aren’t required to use E-Verify. A number of E-Verify laws, rules, and regulations have taken effect in more than a dozen states, and depending on the language of the law and the number of employees you have, you may risk losing your business license if you fail to use E-Verify.
- If you’re not required to use E-Verify, consider using it anyway. There are serious pros and cons to consider, but you get brownie points (yeah, yeah, I know they’re not cookies, but they are relatives, and Christmas is all about family, right?) with ICE for using it, and if you have any paperwork errors lurking in your I-9 filing cabinet (see #3: you do), using E-Verify may help you avoid fines.
- If you are involved in a merger, acquisition, or other corporate reorganization, raise immigration issues early. Ask me for a due diligence checklist. I-9 liability can affect price and even kill a deal. If one of the companies involved in the transaction uses an electronic I-9 software program, the fate of the electronic I-9s must be determined early (will the newly formed company keep the electronic I-9s, use the same software?). “Regular” immigration issues should also be discussed. To the extent that employees are working under employer-sponsored visas or are in the middle of an employment-based green card application process, the employers must determine what (if any) paperwork must be filed (and when) to ensure that the employees do not lose their work authorization.
- Don’t be “e-terrified,” but be cautious. Electronic I-9s and E-Verify can improve compliance, but a flawed electronic system can create greater risk than flawed paper I-9s. Understand that the process of “going electronic” may be a time-consuming task. If you do it right, it will be worth the time and effort. See this article for more details.
- Watch this video. It is about cookies. It has nothing to do with immigration. (Well, that’s not entirely true. Frank Oz (voice of Cookie Monster) was born in England and immigrated to the U.S. when he was 5 years old.) Unless you are the Grinch or a close relative, it will make you smile. And “smile and be nice” = some of the best legal advice I’ve ever heard.