To Comply With Alabama’s Immigration Law, Should I Just Hire Citizens?

Should an employer just hire U.S. citizens to avoid any risk of violating the Alabama Immigration Act, HB 56?  It’s not a trick question.  The clear answer is “No!”

For fear of running afoul of  HB56, and all the penalties contained therein for employing an unauthorized worker, an Alabama employer may conclude it is just best to hire only U.S. citizens, since hiring individuals who are permanent residents or authorized aliens, for example, is too risky.  That conclusion would a mistake.

On one side of the coin, you have the federal and Alabama laws that prohibit the knowingly employment of unauthorized workers.  On the other side of the coin, however, is the  anti-discrimination law enforced by the U.S. Department of Justice, Office of Special Counsel of Immigration-Related Unfair Employment Practices (“OSC”).  An employer must balance on a tightrope between these two compliance issues.

The anti-discrimination law prohibits a policy of hiring U.S. citizens, unless that policy is specifically required by federal law.  (For example, federal law may require that only U.S. citizens may have jobs that involve sensitive government or security information.)

Other types of prohibited discrimination include:

  1. Demanding specific or additional documents from an employee instead of allowing the employee to present any of the documents listed on the acceptable list of documents for I-9 form completion.
  2. Refusing to hire workers who sound or appear foreign.
  3. Demanding that lawful permanent residents present new “green cards” when theirs expire but not demanding U.S. citizens to produce new documents when theirs expire.

And don’t think that employers who violate the anti-discrimination laws are not getting caught and fined.   The OSC has published several cases on its website.

I believe that the OSC has a careful eye on states such as Alabama that have passed their own immigration laws, because it knows that an employer’s initial instinct may be to go beyond the permissible federal boundaries in attempting to comply with state law.

Per ICE Director, Audits of I-9 Forms Will Continue to Increase

 

ICE audits of employers’ I-9 forms will continue to increase in the coming years, so now is the time for employers to get ready.  John Morton, the Director of ICE, recently spoke at the Worksite Immigration Compliance Symposium at Stanford School of Law.

Director Morton was accompanied by a host of secret service officers.  The room was full so we found ourselves on the dreaded front row trying to eat our lunch and not make any sudden moves that may be interpreted by the secret service as some hostile act.

Director Morton’s message to the crowd was clear-ICE audits of employers will continue to increase in the coming years so employers better get their houses in order.  The “silent raids” involving the inspection of I-9 forms and issuance of fines for errors on such forms have no end in sight.  Since an employer has only three business days to turn over the I-9 forms after being served with an ICE notice of inspection, an employer’s decision to just wait and see is extremely risky.

We know from our internal audits of employers that the error rates often range between 50%-75%.  If you multiply the I-9 forms with errors by a possible fine of $1100, that is big money at issue.  Then there is the potential for negative press.  Even if the employer had no unauthorized workers, the headline might state something like, “Company fined for Immigration Violations.”  Such a headline implies something much more than just a paperwork problem.  Why take this risk when there are ways to clean up and get ready for the time when ICE comes knocking?

 The good news is that Director Morton and ICE are not keeping their intentions secret.  They are providing clear warning that more audits are coming.

What can employers do?

  1. Obtain experienced legal counsel to audit and provide guidance on correcting their I-9 forms during the relevant retention period.   Self-audits often lead to more problems.
  2. Develop compliant standard operating procedures to avoid future errors and ensure compliance in all immigration areas.
  3. Review the available guidance provided by the government, including the M-274 Manual for Employers, and the M-396 Guide to Selected U.S. Travel and Identity Documents.  Warning:  the guidance provided by the government does not answer all the questions and sometimes is confusing or even conflicting.