Proposed Immigration Reform Legislation and E-Verify

The discussion about Congress possibly passing immigration reform is a major topic right now. Many expect that in 2013, Congress will pass some version of immigration reform (i.e., providing legal status to individuals who are currently residing in the U.S. without legal authorization). In looking at what is currently in the pipeline, some of the proposed bills and related discussions point to a mandatory requirement that all employers enroll in E-Verify or possibly some other version of E-Verify. Presently, employers may voluntarily enroll in E-Verify, and certain employers, who contract with the government, are required to enroll in the program. 

Although nothing is final, it is important to be prepared to transition into any possible E-Verify requirement.  While we wait for Congress’ decision on immigration reform, employers should continue to comply with the immigration laws that apply to their business. 

Employers are required to comply with all Form I-9 requirements and cannot employ any individual unauthorized to work. If your I-9 compliance is in need of review, you should contact your attorney who specializes in I-9 compliance. Doing so will prepare you and your company to transition into any immigration reform that becomes law.

Daniel N. Ramirez is a named partner at Monty & Ramirez LLP.  He is also board certified in labor and employment law by the Texas Board of Specialization and has been recognized as a Rising Star by Super Lawyers magazine. 

Daniel's Contact Information:
Email: dramirez@montyramirezlaw.com 
Telephone: 281.493.5529
Website: http://www.montyramirezlaw.com

National Restaurant Association Show 2012 - Avoid Being ICE'd: Immigration and I-9 Compliance

I was honored to be a speaker at the National Restaurant Association ("NRA") Show 2012 this weekend (5/5/2012) in Chicago.  I had the the opportunity to present to restaurateurs from throughout the nation during one of the NRA's educational seminars.  My seminar focused on how Immigration Customs and Enforcement (“ICE”) continues to investigate employers and conduct I-9 audits and raids to ensure companies (and owners) are complying with applicable immigration and I-9 requirements.  Additionally, the seminar illustrated how fines can reach into the hundreds of thousands of dollars and criminal penalties can be imposed on owners and managers who knowingly hire undocumented workers. 

In short, the presentation focused on providing employers in the hospitality industry with the necessary information and tools to keep their restaurants from being "ICE'd" by the government. Here is a link to an online article from Nation's Restaurant News relating to my NRA education seminar:  http://nrn.com/article/10-steps-immigration-compliance.

Always remember, if your or your company needs any assistance with an ICE government investigation or any I-9 or Immigration Compliance issues, please do not hesitate to contact our offices.

Daniel N. Ramirez is a named partner at Monty & Ramirez LLP.  He is also board certified in labor and employment law by the Texas Board of Specialization and has been recognized as a Rising Star by Super Lawyers magazine.

Daniel's Contact Information:

Email: dramirez@montyramirezlaw.com

Telephone: 281.493.5529

Website: http://www.montyramirezlaw.com

Redesign of Employment Authorization Document and Certificate of Citizenship Furthers USCIS’ Goal to Enhance Document Security and Prevent Fraud

Pursuant to the United States Citizenship and Immigration Services' (USCIS) objective to produce more secure documentation that is more difficult for document vendors to replicate, it has announced the launch of an enhanced Employment Authorization Document (EAD) and a redesigned Certificate of Citizenship (Form N-560).

USCIS began issuing state-of-the-art technologically equipped EADs this week to deter counterfeiting, obstruct tampering and facilitate quick and accurate authentication. Workers, employers and law enforcement officials all will be able to recognize the card as definitive proof of authorization to work in the United States. While the card has a new look, the USCIS application process remains the same. Previously issued cards will remain valid until the expiration date printed on the card. USCIS will replace EADs already in circulation as individuals apply for replacement or renewal cards. The EAD is a List A document that employees can submit during the I-9/E-Verify process.

The new Certificate of Citizenship has also been redesigned to deter fraud and tampering. USCIS will begin issuing the new Certificates of Citizenship on October 30. Previously issued Certificates of Citizenship will remain valid indefinitely. The Certificate of Citizenship is not on the Lists of Acceptable Documents and cannot be accepted by employers during the I-9/E-Verify process.

USCIS intends to continue to enhance document security features as technology improves. If you have any questions on how the issuance of new EADs and Certificates of Citizenship will affect your employment practices, please contact us at jmonty@montyramirezlaw.com.

Jacob M. Monty is the founding and managing partner of Monty & Ramirez LLP. He is board certified in labor and employment law by the Texas Board of Legal Specialization. He is a member of the American Law Institute and named to Texas Super Lawyers in 2008, 2009, 2010 and 2011.

Contact Information:
Email: jmonty@montyramirezlaw.com
Telephone: 281.493.5529
Website: http://www.montyramirezlaw.com/

More States to Mandate E-Verify Following Recent US Supreme Court Case

With the ruling of the United States Supreme Court in United States Chamber of Commerce v. Whiting, it appears that any state that wants to follow in Arizona’s footsteps and mandate the use of E-Verify will be able to do so so long as there are no direct sanctions for those who do not use E-Verify. Those who choose not to follow the law will simply forfeit the fall-back plan of claiming good faith if they are caught using unauthorized workers. There will be no direct civil or criminal penalties for not using E-Verify if no unauthorized workers are ever found.

Joining Arizona in mandating that all employers (public and private) must use E-Verify are Mississippi, Alabama, South Carolina, Tennessee (except for private employers with less than 7 workers), Georgia (except for private employers with less than 11 workers), Utah (except for private employers with less than 15 workers), and North Carolina (except for private employers with less than 25 workers). In Idaho, Nebraska, Oklahoma, Missouri, Indiana, Virginia, and Florida, all state agencies and state contractors must use E-Verify. In Colorado and Louisiana, all state contractors must use E-Verify.

Jacob M. Monty is the founding and managing partner of Monty & Ramirez, LLP. He is board certified in labor and employment law by the Texas Board of Legal Specialization. He is a member of the American Law Institute and named to Texas Super Lawyers in 2008, 2009, 2010 and 2011.

Contact Information:
Email: jmonty@montyramirezlaw.com
Telephone: 281.493.5529
Website: http://www.montyramirezlaw.com/

Here They Come (Again)—Social Security No Letters!

Social Security Administration (“SSA”) no-match letters have returned—again. The letters have resumed after a SSA no-match letter-hiatus which began in 2007 when the Department of Homeland Security’s 2007 no-match regulation (which has now been rescinded) was blocked by a court.

Employers are obligated to follow-up on the new no-match letters. Follow-up can be summarized in three steps:

(1) Attempt to resolve the mismatch by promptly comparing the employer’s records with the employee’s Social Security Number (“SSN”) and verifying with the employee.
(2) If no error can be discovered, notify the employee in writing with instructions advising the employee to contact the SSA to correct and/or update his or her SSA records.
(3) Get a compliance policy in place, apply it consistently for all employees, and keep records of all actions taken and correspondence.

Employers should not assume that a no-match letter means an employee is unauthorized. The no-match letter does not give an employer a basis to terminate, but in the process of following up, it may impose an obligation to re-verify the I-9 or even terminate. Taking adverse action against an employee based solely upon a no-match letter could result in a charge of immigration-related discrimination under the Immigration and Nationality Act (INA), as well as other state or Federal equal employment opportunity or labor laws.

After step 2, notifying the employee in writing, an employer must provide the employee with a “reasonable period” of time to address a reported no-match with the local SSA office. There are no federal statutes or regulations that define a “reasonable period.” However, the Department of Justice and the ICE suggest that, depending on the circumstances, an employee may need up to 2-4 months to resolve the discrepancy.

If the employee does not submit corrected information, do not automatically fire or re-verify. Go back to the I-9 and evaluate it. If the questionable SSN was used on the I-9, the employer will need to re-verify. When going through the re-verify process, follow the same procedures for all employees regardless of citizenship or national origin. An employer cannot require the employee to produce specific I-9 documents to address the no-match. Be cautious, however, to not accept any document with the questionable SSN unless and until the mismatch has been resolved. Also be cautious, any employee who admits to being unauthorized to work must be terminated immediately.

If the employee attempts to use an entirely different identity, the employer has a right and obligation to require an explanation. If there is a legitimate reason, such as a legal name change, then the employer can accept it and re-verify the I-9. If an employer is unable to resolve the mismatch because the employee is unable to provide a Social Security card, or may no longer work for the employer, the employer should document efforts made to obtain the corrected information and retain the documentation for four years.

Finally, if the employee cannot provide corrected information, let company policy control. Employers may have policies of terminating for failure to provide accurate information, but be sure such a policy is clear and consistent. If no policy exists, the employer can continue to employ the person, but realize that they an employer may not be able to terminate others who provide inaccurate personal data. Finally, the same rule with a reasonable period applies: if your company has a policy to discharge employees who fail to provide correct information, then such policy may be enforced only after a reasonable period of time.

Jacob M. Monty is the founding and managing partner of Monty & Ramirez, LLP. He is board certified in labor and employment law by the Texas Board of Legal Specialization. He is a member of the American Law Institute and named to Texas Super Lawyers in 2008, 2009, 2010 and 2011.

Contact Information:
Email: jmonty@montyramirezlaw.com
Telephone: 281.493.5529
Website: http://www.montyramirezlaw.com/