Immigration reform and crackdowns may affect all employers, but none more so than those in the restaurant industry. The Pew Hispanic Center estimates that around 12 percent of food preparation workers are illegal immigrants. As a result, it’s imperative that employers familiarize themselves with their responsibilities under the ever-changing immigration rules and regulations, and prepare a plan to deal with government intervention.

Social Security No-Match Letters

Each year, the Social Security Administration (SSA) sends no-match letters to employers alerting them to a discrepancy between an employee’s name and the social security number provided. Generally, receipt of such a letter may lead to finding that the employer had knowledge of an employee’s unauthorized worker status and could result in monetary penalties against the employer. The Department of Homeland Security (DHS) recently amended existing regulations regarding SSA no-match letters to provide employers with a “safe harbor” so that the letter cannot be used against them to show constructive knowledge of a worker’s unauthorized status.

• To comply with the safe-harbor rule, an employer must check his records within 30 days of receipt of a no-match letter.
• If the mismatch is related to a clerical error, the employer should make the correction and notify the SSA.
• If the mismatch is not resolved by a records review, the employee must confirm that his or her information is correct.
• If the records are incorrect, the employer should notify the SSA.
• On the other hand, if the employer’s records are correct, the employee must contact the SSA to resolve the discrepancy within 90 days from receipt of the no-match letter.
• If the discrepancy is not resolved after those 90 days, the employer must complete a new I-9 with certain restrictions.
• If this final verification procedure fails to verify the employee’s work authorization, the employer must terminate the employee or risk liability for knowingly employing an unauthorized alien.

ICE I-9 Audits

Pursuant to the Immigration and Nationality Act, the federal government may inspect an employer’s I-9 forms. The I-9s are the employer’s first defense against violating immigration laws. ICE must give an employer at least three days notice of an I-9 audit, and may be agreeable to an extension if the employer so requests. ICE generally provides notice by an administrative subpoena and Notice of Inspection (NOI).

An employer receiving an NOI should carefully review its contents and determine whether the scope of the subpoena is appropriate. ICE’s review of the documents generally ranges from six to eight weeks and culminates by ICE sending a NOI Report to the employer identifying those employees deemed to be unauthorized aliens and containing instructions on reporting the termination of those employees to ICE.

One important change in the I-9 forms to note is that U.S. Citizenship and Immigration Services announced that effective December 26, 2007, employers must begin using the new version of Form I-9. The new form is distinguishable from the old form by its elimination of five items from the list of acceptable documents for List A.

State Immigration Laws

Many state legislatures are now taking the initiative to enact immigration laws. As of mid-November, more than 1,500 pieces of legislation related to immigrants and immigration had been introduced among state legislatures. Of these bills, 244 became law in 46 states with many focusing on the employer’s responsibility to verify the employee’s work status.

Employing an illegal immigrant can result in harsh penalties under some state laws. For example, Tennessee House Bill 729, makes it a criminal offense punishable by fines up to $50,000 and potentially a one year suspension of the company’s business license. HB 729 contains a safe-harbor provision for employers who use the federal Basic Pilot verification system. Some states, such as Arizona, are now requiring employers to use Basic Pilot. On the other hand, Illinois passed a law prohibiting employers from using Basic Pilot until it could be proven to be 99 percent accurate. The federal justice department is currently challenging the Illinois law.