The employer has 90 days from receipt of the no-match letter to resolve any discrepancies. An additional three days is provided for the employee to complete a new I-9. During this procedure (i.e., the first 90 days), the employer has a "safe harbor" and may continue to employ the worker until the process is completed without violating non-discrimination laws.
If corrections are not made, and the employee is retained, the individual responsible for hiring and the company are subject to criminal and civil sanctions. The criminal penalties range up to $3,000 for each unauthorized person employed and possible imprisonment. Civil penalties range from $275 to $11,000 for each unauthorized employee.
To assist in compliance to the new rules, a letter from the U.S. Immigration Customs Enforcement (ICE) informing employers how to respond in a manner consistent with U.S. Immigration laws will accompany no-match letters.
Arizona "Employment of Unauthorized Aliens" Law
Arizona's "Employment of Unauthorized Aliens" law becomes effective January 1, 2008. The law exposes employers to the loss of their business license if they "intentionally" or "knowingly" employ an unauthorized alien. The law also exposes the employer to investigations by the Arizona Attorney General and various county attorneys.
Penalties depend upon whether the employer "knowingly" or "intentionally" employed an unauthorized alien. "Knowingly" includes actual or constructive knowledge that a person is not authorized to work. This can include a failure to properly complete the federal Form I-9, having information that would indicate that the individual is not authorized to work (e.g., a number of Social Security Administration no-match letters on the individual), or other acts that could be interpreted as a disregard of the requirements of the law. The term "intentionally" is defined under Arizona criminal law and applies when it can be shown that the employer had an actual objective (i.e., intention) to hire an unauthorized alien.
If an employer "knowingly" employs an unauthorized alien, the court may suspend the employer's business license for 10 days and give the employer a probationary period for up to three years. If, during the probationary period, the employer knowingly or intentionally employs an unauthorized worker, the business license will be permanently revoked. After three years without a violation, there is no further liability.
If an employer "intentionally" employs an unauthorized worker, the court must suspend the employer's license for at least 10 days. The employer also is subject to a five-year probationary period. A second violation will result in a permanent revocation of the business license.
During the probationary period, more stringent requirements are imposed upon the employer. The employer's name also is posted on the Attorney General's website.
Under the law, every employer is required to utilize the federal employment verification program E-Verify (previously the Basic Pilot Program) to verify eligibility of new employees. If an employer uses E-Verify, there is a presumption that the employer did not knowingly or intentionally employ an unauthorized alien. If the employer properly follows the federal Form I-9 employment verification process, the employer may also avoid liability.
The law allows anyone to file a complaint. The language of the statute does not restrict the unlawful employment to only Arizona. While the statute provides penalties for knowingly filing a false or frivolous complaint against an employer, it is not clear whether the Arizona Attorney General or various county attorneys will take anonymous complaints. The law also provides that the Attorney General or county attorney must determine work eligibility by contacting federal immigration authorities and not conduct an independent investigation. If a complaint is deemed "not frivolous," the Attorney General or county attorney must notify federal immigration authorities and local law enforcement, and file a lawsuit against the employer. Court hearings must be held as soon as "practicable."
Planning for Compliance
Employers have to ensure full compliance with immigration regulation and laws, and careful and accurate completion of the federal Form I-9. This includes confirming that the documents presented appear genuine and are consistent with the information placed on the Form I-9. While there is no federal requirement that employers keep copies of the documents presented by the employee to complete the Form I-9, it may be advisable to do so. Having a copy of documents that appear valid supports the presumption that the employer, in good faith, followed the federal I-9 employment verification process.
Employers that receive no-match letters should comply exactly with the direction in the letter from the Social Security Administration and the accompanying ICE letter. It is likely that, absent other failures in the hiring process, compliance with the ICE process will allow the employer to avoid a state claim of "knowingly" or "intentionally" employing an unauthorized alien for at least the period to comply with the direction of the no-match letter (i.e., 90 days).
The new federal regulation and state law may only be the beginning of governments placing on employers the obligation to assure the hiring of only authorized workers. How these laws will be enforced and other similar matters is not yet known. It is recommended that employers be aware of their obligations under these directives to avoid criminal and civil liability and the loss of a business license.