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pumps up INS arsenal

New immigration law
pumps up INS arsenal

The act, known as IIRAIRA, was attached to a continuing budget resolution that had to be enacted and signed before the federal government’s new year on Oct. 1 in order to keep the government operating. Most provisions of the new act go into effect April 1, 1997.
While Congress was wrangling, the Immigration and Naturalization Service was acting, and reacting, to the increased public and political attention focused on illegal immigration, using tools already within its arsenal. During this past year, the INS has significantly stepped up its enforcement of the Immigration Reform and Control Act of 1986. Pilot projects also were instituted to enable employers to more accurately verify that prospective employees are eligible to work in the United States. Additionally, there now are increased penalties for knowingly hiring an unauthorized worker.
As employers know all too well, to prevent illegal aliens from working in the United States, they must comply with IRCA. Under IRCA, employers may not knowingly employ any person not authorized to work in the United States and must verify the employment eligibility of every new hire.
During 1996, the INS has targeted industries it believes are traditionally associated with illegal employment, such as food processing, garment manufacturing, agriculture, service industries and construction. The INS also has doubled the number of agents available to conduct workplace investigations, with 300 more available under IIRAIRA. The president’s 1997 budget requests an additional $30 million to expand work-site enforcement efforts.
The INS also is working closely with the Department of Labor to investigate employers suspected of hiring unauthorized employees or violating the Fair Labor Standards Act. In one widely publicized case, the INS imposed a record-breaking $1.5 million fine on a New York janitorial firm for 150 violations involving the knowing hire of illegal aliens, and 2,500 instances of failing to properly complete and maintain I-9 forms.
The INS has other initiatives under way. It has established pilot employment-verification projects in California and in the meat-packing industry, through voluntary agreements with employers. Under these agreements, employers must use a computerized data-base system to check the status of all job applicants who identify themselves as non-citizens. Under IIRAIRA, the pilot programs will be expanded to include five of the seven states with the largest numbers of illegal immigrants.
Some employers like this system because they no longer have to determine whether an applicant’s documents appear genuine and do not have to worry about counterfeit documents. However, opponents of the pilot program question whether the data base can be 100 percent accurate and are concerned that employers could deny jobs to work-authorized individuals whose information in the data base is inaccurate.
Other critics argue that the data base is intrusive and eventually could lead to a national identification card. Nevertheless, the INS is actively negotiating with additional employers and industries to expand this verification program.
The penalties for violating IRCA also have been increased. These include the statutory fines of up to $1,000 for each paperwork violation and up to $5,000 for knowingly hiring an unauthorized worker or discriminating based on national origin or citizenship status, plus back pay to the employee. But other new sanctions are in place as well. While IIRAIRA makes some changes to soften the penalties for paperwork violations made in good faith, it also provides for fewer acceptable documents and includes additional penalties for fraudulent documents.
In February, the president issued an executive order providing for a one-year restriction from obtaining federal contracts for employers who knowingly hire illegal workers. Earlier this year, the INS announced a federal-state cooperative effort to fight illegal immigration in Florida. Florida’s governor has stated that he plans to bar businesses that knowingly hire illegal immigrants from obtaining state contracts.
Employers should ensure they are properly completing I-9 forms on all new hires. This includes making certain that personnel managers are properly trained to complete I-9 forms accurately and are aware of legal and illegal questions that may, and may not, be asked of applicants. Managers should know which documents are acceptable for I-9 purposes, and should avoid asking for more documents than are needed or asking for particular documents. Under IRCA, this can constitute unlawful document abuse.
Since IRCA contains anti-discrimination provisions, employers must walk a fine line between not employing illegal aliens on the one hand, and not discriminating against individuals on the basis of national origin or citizenship, on the other.
Employers would be well-advised to audit their current I-9 records. During the audit, employers should find out whether they have an I-9 form for every current employee, unless grandfathered or otherwise exempted. Furthermore, each I-9 should be inspected for completeness and any paperwork violations. If an employer fails to perform such an inspection, the INS will do it and assess penalties.
Indeed, the INS has imposed significant fines solely for paperwork violations and even where there were no unauthorized workers on the payroll. In some cases of fines for paperwork violations, all employees were U.S. citizens! To ensure that employees continue to be authorized, employers should check that employees have been reverified in all necessary cases.
Finally, employers should maintain a standard written IRCA-compliance policy to be followed by all managers with hiring authority. This policy should be uniformly applied to all new employees and widely disseminated to all applicable managers.
An employer may wish to designate one person as IRCA compliance officer. That person would have centralized oversight of the company’s compliance program. He or she should be available to answer questions from managers, and should either perform periodic auditsof I-9 forms or review each I-9 prepared. Once IIRAIRA goes into effect, training to update those who deal with new employees will be essential to ensure compliance with the new provisions.
Both political parties are seeking to exploit the current anti-immigrant climate. Forthcoming legislation and enforcement programs will further restrict illegal immigration by curtailing job opportunities for illegal immigrants.
Employers are enforcement mechanisms under IRCA. Prudent employers would be advised to ensure they are in full compliance with all IRCA requirements. Employers can be subject to INS investigations on the basis of tips from disgruntled employees or competitors, routine Labor Department inspections or through random selection.
By instituting appropriate training and compliance programs as suggested in this summary, employers can steer clear of the monetary fines and adverse publicity associated with IRCA violations.
(Justin P. Doyle is a partner with Nixon, Hargrave, Devans & Doyle LLP. His partner, Patti Morrison, assisted with this article.)


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