Immigration reform: what employers must do: now is the time for employers of all sizes to review their own worker policies to ensure that they are in compliance with the law--or face stiff penalties.

Immigration is in the headlines nearly every day. As the possibility of major immigration reform looms, employers in the apartment industry need to understand how the current system might soon change and what those changes would mean for the way they deal with their employees.

On May 25, 2006, the U.S. Senate voted to approve comprehensive immigration reform legislation that would create a temporary guest worker program and a new path to citizenship for an estimated 12 million undocumented immigrants who reside and work in the United States. In December 2005, the House of Representatives passed a tougher enforcement and border security immigration bill. Because of the vast differences in their respective bills, the Senate and House must now undertake the task of reconciling those differences to produce legislation the president will sign.

Despite the differences, both the Senate and House bills include proposals to replace the current paper employment verification forms with an electronic system that would tap into the databases maintained by the Social Security Administration and the Department of Homeland Security. The proposals seek to build on the Basic Pilot program, a voluntary electronic employment verification system established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Currently, only 2,300 of the 5.6 million United States employers actively participate in the Basic Pilot program. The Senate and House bills would expand this system and require that all employers use it when hiring employees to work in the United States.

Until new legislation goes into effect, U.S. employers must continue to verify eligibility to work using the existing paper system, which uses Form I-9 to verify a worker's identity and eligibility to work in the United States. Employers must ensure they are compliant with the I-9 requirements. With the increased focus on immigration reform, employers--including owners and managers of apartment buildings--may expect greater scrutiny within the existing system until adequate reforms are in place. Accordingly, this is a good time for employers of all sizes to review the I-9 basics and to review their own policies to ensure that they are in compliance with the law.

Form I-9 Basics

The Immigration Reform and Control Act (IRCA), enacted in 1986, was designed to discourage the employment of illegal immigrants by discouraging illegal immigration into the United States. For all employees hired after Nov. 6, 1986, IRCA requires employers to use a paper I-9 form to verify an employee's identity and eligibility to work in the country. Additionally, the Immigration and Nationality Act (INA) makes it unlawful for any employer to knowingly recruit, hire or continue to employ a worker who is not authorized to work in the United States.

Employers must complete an I-9 form for every individual hired as an employee. An employee is defined as "any person who performs labor or services in return for wages or other remuneration." However, there are exceptions, including: (1) employees hired prior to Nov. 7, 1986, who were continuously employed by the same employer; (2) employees hired on an irregular basis for private, casual domestic work; and (3) independent contractors whom the employer does not supervise directly, provide the tools for the job or set work hours.

The I-9 form contains three sections. Employers must not complete any portion of Section 1 even if the information can be obtained from employees' personnel forms. Rather, it must be completed by the employee no later than the first day of employment. If employers choose to permit employees to complete Section 1 prior to the first day of employment, they must apply this practice consistently to all new hires. However, an employee must not be allowed to complete Section 1 until he or she has accepted the position with the employer.

Employers must ensure that employees fill in the appropriate information in Section 1 and then sign and date the I-9 forms. Within Section 1, an employee must indicate his or her current status. If he has a temporary work authorization, he also must indicate the expiration date. By signing the I-9 form, employees attest under penalty of perjury that they are citizens, lawful permanent residents or aliens who are authorized to work in the United States.

Employers must complete Section 2 of the I-9 form. Employees must present original documents that establish identity and eligibility to work in the United States. Photocopies are not acceptable. The employee may choose to present one document from the I-9 form's List A, which establishes identity and eligibility to work, or one document from List B establishing identity and one document from List C establishing eligibility to work. Employers must not dictate which documents employees should produce because that may be considered an unlawful immigration-related employment practice subject to penalties under IRCA. Once employees present the documents of their choosing, employers must accept those documents as long as they appear to be genuine and to relate to the person presenting them.

Employers use Section 3 of the I-9 form when reverification is necessary. Reverification usually becomes necessary when a temporary work eligibility document expires or after an employee's name changes. Employers may reverify a current employee's work eligibility by using Section 3 of the original I-9 form or by using a new I-9 form.

Retaining the I-9 Forms

Employers must retain I-9 forms on all employees for the duration of the employment. Also, employers must retain I-9 forms for three years after the employee's date of hire or one year after the employment is terminated, whichever is longer.

Employers should store I-9 forms separately from employment files, which helps to avoid complaints of discrimination based on the information contained on them. More importantly, it eliminates the need to produce the entire personnel record if the United States Citizenship and Immigration Service (USCIS), the Department of Homeland Security or the Department of Labor requests to inspect the I-9 forms.

Copying Employee Documents

Copying documents presented by employees is not required. However, the Office of the Chief Administrative Hearing Officer, which assesses fines and penalties for I-9 violations, has previously found that photocopying documents and attaching them to the I-9 forms can be a mitigating factor in assessing penalties. Also, photocopies of documents may assist employers and their counsel to prepare for a USCIS audit or to defend against claims that appropriate documentation was not presented by employees. Photocopies are also valuable to employers conducting periodic self-audits to ensure IRCA compliance.

When photocopies are retained, however, they must be made for all employees to avoid claims of discrimination. Also, the photocopies must be used solely for I-9 purposes.

Penalties for Employer Noncompliance 

Failure to comply with the I-9 requirements can subject employers to civil and criminal penalties. Examples of employer noncompliance include failure to properly complete the I-9 form, knowingly hiring or continuing to employ an unauthorized worker and knowingly accepting false Social Security cards.

Failure to properly complete the I-9 form may result in fines from $100 to $1,100 for each violation. It is important to note that each error or omission on the I-9 form represents a single violation.

Unlawfully hiring and continuing to employ someone who is not authorized to work may result in fines between $200 and $2,000 for each unauthorized worker for first-time offenders. The fines increase to $2,000 to $5,000 for second-time offenders. For subsequent offenses, the fines range from $3,000 to $10,000. For violations occurring after Sept. 29, 1999, the penalties in each category increase to $275 to $2,200, $2,200 to $5,500 and $3,300 to $11,000, respectively. If a pattern or practice of knowingly hiring or employing illegal workers is identified, criminal penalties of up to six months of imprisonment may be imposed.

Up in the Air

Until the Senate and House reconcile the differences in their respective bills, immigration reform remains up in the air. Until there is a new law, employers in the apartment industry must continue to ensure they comply with all I-9 requirements under the present system or face potential civil or criminal penalties. In this time of heightened immigration awareness, employers may expect heightened scrutiny of the current I-9 system.

RELATED ARTICLE: What to do when the government calls.

Immigration and Customs Enforcement (ICE) or U.S. Citizenship and Immigration Services personnel can demand to inspect employers' I-9 forms. Employers must be given three days' notice of the intention to conduct an inspection of the I-9 forms. Such notice may be given orally or in writing.

Employers should follow these simple rules:

1. Never consent to an immediate review of the I-9 forms or of any other records. Instead, invoke a three-day rule with the agent and then call an attorney immediately.

2. Never let the agents remove original documents from the premises. Always make photocopies for the agents to take with them.

3. Be sure to get the name, telephone number and business card of at least the lead agent in charge of the inspection.

4. Never give consent for agents to speak with any employees on the premises. If the agents start to do so, stop them immediately.

5. If the agents appear with a warrant requiring immediate production of the I-9 forms or other employment records, call an attorney immediately so that he or she can come to the premises to deal directly with the agents. It is important to remember that an owner cannot obstruct the agents from accessing the documents listed on the warrant while they are waiting for an attorney to arrive.--S.B.

RELATED ARTICLE: Cities propose bans on renting to illegal immigrants.

BY RACHEL ARNOLD

Hazleton, Penn., is joining San Bernardino, Calif., in considering a proposal to ball certain activities related to illegal immigrants. After passing the City of Hazleton Illegal Immigration Relief Act Ordinance on first reading, the council must vote to pass twice more before the ordinance can be enacted. The next scheduled vote is July 13. The mayor presented the ordinance to the city council and has actively advocated in the press and through an open letter on the city Web site for its passage. Though San Bernardino was the first city to consider such a bill, Hazleton is expected to be the first to enact such an unprecedented local proposal.

Of importance to the apartment industry is a provision prohibiting housing providers from renting to undocumented residents, with a $1,000 minimum fine attached. The measure requires that all leases be filed with the city, forcing the clerk's office to inspect as many as 100,000 rental and leasing documents each year.

Additionally, the measure would allow city officials to deny permits, contracts and grants to employers who hire illegal immigrants and require city business be conducted in English. The San Bernardino measure would effectively ban day labor centers and allow police to impound vehicles used to carry undocumented workers.

The ordinances under consideration by both cities are largely the same, though the process for enacting them will be very different. Hazleton's passage will require only a city council vote, while San Bernardino will require a special election.

The citizens of San Bernardino are expected to vote on the ballot measure in September; but an election date has not yet been set; San Bernardino County Superior Court is considering whether or not enough signatures were gathered to get the measure on the ballot.

Public sentiment on this proposal appears to be split. The months leading up to the special election promise to be interesting, with advocates for both sides embarking on massive get out the vote and education drives. Cities across the country will be watching to see how this scenario plays out. It's likely, if those pass, that other cities will attempt similar proposals.

If enacted, the American Civil Liberties Union and the Mexican American Legal Defense and Education Fund have vowed to fight the San Bernardino proposal. The Apartment Association of Greater Philadelphia and the Apartment Association Greater Inland Empire, a chapter of the California Apartment Association, are exploring their options for fighting those proposals.

Rachel Arnold, NAA's Director of Public Affair, can be reached at 703/518-6141 Ext. 119 or [e-mail].

Stuart Brock practices employment law in the Charlotte office of Womble Carlyle Sandridge & Rice, PLLC, where he assists corporate clients with their immigration needs. He can be contacted at [e-mail] or 704/331-4975.