New I-9 rules put bigger burden on HR
October 30, 2008 by Sam NarisiPosted in: Background checks, Law, Special Report
If the Department of Homeland Security gets its way, employers will soon share a bigger part of the burden in the fight against illegal immigration. Here’s what HR needs to know.
First, some background:
In August of last year, the DHS issued new regulations clarifying the steps employers must take when they get a “no-match” letter from the Social Security Administration — a notice that the name and social security number provided by an employee don’t match up with the SSA’s database.
However, a federal court in California issued an injunction to keep the rule from going into effect.
Last week, the DHS revised its proposal by including additional information and asked the court to lift the ban. The rules themselves are the same as they were last year:
- When companies get a no-match letter, they have 30 days to check their own records and see if there’s a mistake on their part. If so, they need to send the SSA the corrected information and let them know the problem’s been solved.
- If there’s no error in the company’s paperwork, the firm must tell the employee about the notification. From that point, the employee has 90 days to clear up the problem with SSA.
- At the end of the 90-day period, the company has three days to complete a new I-9 form for the employee.
The DHS says if companies follow those guidelines, they won’t be charged with knowingly hiring unauthorized workers.
But if no corrective action is taken within 90 days, the company will be in violation of the law.
The court’s expected to reconsider the proposal soon. We’ll keep you posted.
Avoid bias claims
Another point HR needs to watch for: As one government agency wants companies to take a tougher stand on unauthorized workers, the courts are also ready to punish those who take it too far.
No-match letters on their own don’t prove that a worker is undocumented. Unless there’s other overwhelming evidence that an employee is breaking the law, employers should give workers the full amount of time allowed by the DHS to correct any mistakes.
Otherwise, the company is opening itself up to wrongful termination and discrimination suits.
Tags: Department of Homeland Security, DHS, I-9, no-match, social security number
October 31st, 2008 at 11:32 am
I say- make it law! It should be the employer’s responsibility to ensure they only hire legal aliens. I work in an organization with a lot of asian employees. Many I have to take off the payroll after their visas expire until their new H-1B is approved. In several cases we had to watch good employees return to their home countries. They love America and would like to stay but they know the law and they know I will enforce it and take them off the payroll when their visa expires. I think every operations manager and president of a company who is causght with illegal workers SHOULD do jail time AND pay a hefty fine. Once word gets out to other sleezy employers this illegal activity will cease.
October 31st, 2008 at 11:58 am
I agree, it’s about time this government begins to take care of their citizens, before taking care of illegals. Physically Handicapped Americans are getting their services cut, or having to wait in line behind illegals before they receive services and benefit from our tax dollars.
The waiting line for section 8 housing has a 2year backup because of illagal families who happen to have a child born in the united states.
Illegals
We need these illigals out of our country “NOW”
October 31st, 2008 at 12:08 pm
I think the responses thus far seem to have a huge issue with “illegals” working here. I myself don’t have an issue with it, they work harder than most americans.
However, I do think that if you are going to complain about them you should at least be spelling the word correctly. It just makes you look ignorant, who doesn’t have spell check these days?
October 31st, 2008 at 12:08 pm
Paul,
I agree that violators of the law should be punished. However, to say that every manager or president of a company caught with illedal workers should do jail time is a bit harsh. What if it can be proven that they did not “knowingly” hire the illegal workers but were presented with passable fraudulant documents that a reasonable person such as yourself would have accepted as valid? Should this person or you, do jail time time? I believe that anybody that knowingly hires illegal or undocumented workers should face harsh punishment.
If the government does away with the “resonable man” test for accepting documents, nobody will get hired for any job.
October 31st, 2008 at 12:29 pm
Most employers aim to hire only legal persons. It is about time, we are able to truly act on problems with verifying work authorization. Few citizens seem to be aware that former regulations put more consequences on employers for asking too many questions than for employing illegals.
We did not get an illegal immigrant problem primarily because of employers, but instead liberal politicians who forbad employer action regarding suspect documents or status.
Until Dec. 2005, an employer who filled out the I-9 properly and saw documents that appeared to be reasonably valid to a non-expert, would not be fined even if the employee was illegal.
Key point: If an employee presented a document that appeared similar to one of many versions of the acceptable documents, but somewhat questionable, the employer could face heavy penalties for discrimination whether the individual was legal or not.
Does that sound like a bad employer or bad government? The later I assure you
October 31st, 2008 at 12:32 pm
I was always under the impression that we could not terminate an employee because of a discrepancy in the ss number. We have always notified them of a discrepancy and advised them that they must contact their local ss office, but I had been told at one point this is all we were to do, that we could not terminate. Do we have recourse beyond that to terminate if they do not follow through?
October 31st, 2008 at 1:06 pm
In response to our need to get all of the illegals out of the country NOW, I would suggest that people familiarize themselves with the demographics of our country. If you look at the number of baby boomers who will be retiring in the coming years, and the expectations of how long they will live, the numbers show that there are not enough younger people to support our systems. And it’s too late to start having more babies. They won’t be old enough, soon enough. So the only way to have enough working age people in the coming years is to have immigration. Exaggerating to make his point, one demographic speciliast has said that rather than building a wall between the United States and Mexico, we need to put up lemonade stands with balloons. I totally agree that we need to deal with the problem of illegal immigration. But we also need to find ways to make it easier for people to immigrate legally. I have friends who are university professors, here legally for many years, paying taxes. In other words, these are the kinds of immigrants we all say that we want. They tell me that the continual hassle they have to go through, along with the expense, is a real deterrent to living and working in the United States.
October 31st, 2008 at 1:22 pm
OK, this is ridiculous!
In 90 days you fill out a new I-9? What if you CAN’T because the employee didn’t do anything to correct the issue? We can’t fire them because of fear of discrimination, but yet if we keep them, we get hit with ‘knowingly’ hiring an illegal? The courts need to give companies some help with dealing with this issue where we can safely fire someone who cannot prove they have a legal right to work in the USA.
And what do you do when he comes back with different information? You’re still stuck if they give you information that passes the E-Verify website. They are so worried about ‘offending’ someone that they have made it impossible to do anything. Stop worrying about those who came illegally and start worrying about those who are running a business and are trying to follow rules that waiver whenever someone sneezes!
October 31st, 2008 at 1:26 pm
I find this incredibly disturbing. First, the emphasis on “illegal workers” rather than “undocumented aliens” gives this a sense of “law and order” instead of veiled prejudice and racism. Our country has a long history of this with blacks, irish, chinese, japanese, hispanics, and muslims. The true facts are that our country has depended on the cheap labor provided from immigrants and the influx of a strong work ethic that seems to diminish after becoming “Americanized.” Many of your small businesses and “mom and pop” shops are owned by new citizens. Most of these “undocumented aliens” pay taxes and social security and are unable to collect the benefits from those donations. Of course, now that the economy has tanked, many may not come to our country like before and we will have to all learn to mow our own grass and clean our own houses.
Secondly, this is another burden placed on employers to do the government’s job. It is in essence another tax in manpower and resources with the threat of severe penalties if the company does not comply. Companies are strapped to make a profit and now will have their own “unfunded mandate” to do this work for the government.
And thirdly, how will noncompliance be investigated and dealt with. The large corporations will be able to hire a company to carry out this function and have some insulation from any penalties levied, however the smaller business will deal with this on top of their struggling business and if they make a mistake, they could be bankrupted. Of course then the large corporation can then “buy out” the little guy and remove any competition, then raise their prices and move the profits out of the country.
Who is the real criminal here? The guy who cuts your grass or owns the deli/gas station where you get coffee in the morning or the blonde haired, blue eyed guy in the suit who owns three houses ( one outside of this country in case the economy gets really bad) and pays less taxes than either of the former. and then again, once the ‘undocumented aliens” are gone, and you don’t have a job, that guy will hire you to pump his gas and cut his grass, at an even lower wage and no benefits.
October 31st, 2008 at 1:59 pm
I find it incredibly disturbing that Sandy has spelled illegals three different ways.
October 31st, 2008 at 2:12 pm
Immigrants indeed perform some of the most minial jobs, that our own citizens won’t do. As “minial” as these jobs may be however, they are still better off than in their own countries - otherwise, they wouldn’t keep on coming….
Let’s keep focused on the issue here - The question here is not the “immigrant” issue - it is the “ILLEGAL immigration” issue! As long as America exists (as we know it), Immigrants will continue to arrive - as most of us have… I don’t think most Americans have issue with that - as long as it is done within American laws!
America has a right to protect its borders and to implement “LEGAL immigration” laws and policies that need to be followed. Most other countries (including our neighbors) do and I don’t hear anyone complaining about that.
Let’s face it, millions of dollars are sent by immigrants to their native countries. That’s money leaving our borders - that can’t be good for “our” economy….
October 31st, 2008 at 3:29 pm
It is exactly because companies have knowingly hired “undocumented workers” that government regulation is necessary. Read what I said above. I have an organization that is 99% Chinese. There is no racism here. How much work is it to set up a reminder to check the status before the 90 days expires and take appropriate action? And, to answer your question about who is the criminal here– it is the undocumented worker who came in to the US illegally and not like my great grandparents did when they came over form Europe in the 1800’s. The business owner who knows he has “undocumented workers” is also a criminal and should be dealt with severely - say pulling off his fingernails. No, we can’t do that, so just throw the criminal in jail for a few months and hit him with a hefty fine.
October 31st, 2008 at 4:07 pm
Mike, sounds like you have a prejudice for blond haired blue eyed men and you really should not
stereotype every legal citizen as not cutting their own grass or cleaning their own house.
Shame on you.
October 31st, 2008 at 4:43 pm
Hey guys, you’re getting upset over policies that are not going to change, at least, not on your watch. Do the best you can with what you got. Life is short enough without letting stress shorten it even more. Rules will change when oil and insurance want them to change.
October 31st, 2008 at 5:28 pm
The problem is that we associate “criminal” with “danger” and “evil.” Not all laws are moral. It was once legal to own a person in this country and illegal to help that person escape to a free state. Even Jesus of Nazareth was a criminal and got the death penalty. Also, every person who breaks the law by speeding 5 miles over the speed limit is a criminal. Not everyone is a danger or evil.
This law is suspect because it deals with this heightened sense of fear and urgency. More terrorism in our country has been perpetrated by regular American citizens than any foreign born “undocumented alien.” More abuse of the welfare system and healthcare system has been by regular American citizens than any “undocumented alien.”
Laws should reflect what is needed to protect the public good. My point is that the “undocumented aliens” make a convenient scapegoat to vent our anger, when there are many “respectable” American entities that violate the public good and have no laws passed to prevent them.
And just because you have 99% of a protected group in your organization, doesn’t make the argument that racism and sexism isn’t at play. I know companies where 99% are women and they are sexist and discriminate against men. I know companies that are 99% black that discriminate against whites. I know companies that are 99% Korean that discriminate against hispanics.
November 1st, 2008 at 6:05 am
It is one thing to support a theoretical concept and another to deal with real life, day to day issues. I agree with Mike on much of what he says, but I also agree with Paul on the practical application of regulation that will help us day to day. Here’s why:
Our industry has a high turnover in entry level employess so any additional responsibilities would be difficult to absorb, but we know what it is like to lose an entire work force due to the accidental use of workers with forged or otherwise illegal documents. We hired them using the old I-9 rules. We were instructed to fire them on the spot and given no grace period to find qualified replacements. Talk about an additional burden…
Even though I am not of fan of regulation in general I do say this: I’m up for any minor inconvenience in the hiring process that will give us more confidence in hiring - knowing we are spending our training dollars on employees who have a legal right to work in our plants.
November 10th, 2008 at 6:08 am
[...] (Read the DHS’s rules here.) [...]