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The Obama Administration has raised a spectre of fear among employers because of not following document requirements for hiring new employees. Enforcement agents of the Immigration Service have recently been scrutinizing business I-9 compliance throughout the country in record numbers. Restaurants especially have been targeted for heavy penalties and even criminal charges because of failing to properly record identity and working authorization of prospective employees. What legal defenses are available to these fortuitous raids, and audits and arrests?EMPLOYER, WHAT MUST THEY DOA prospective employee must exhibit documents to show employment authorization and identity. Within three days of employment, the employer is required to complete Form I-9listing these documents for each prospective employee. The documents must be noted for I.D. numbers and expiration dates. Copies of the documents are not required to be kept, but the employer must retain the I-9s. The employer is not liable for technical or procedural mistakes if made in good faith.Documents proving employment and identity:U.S. passportGreen CardForeign passport with P.R. stampEmployment Authorization CardForeign passport with Form I-94 displaying anunexpired right to workFor Employment Authorization AloneSocial Security CardProof abroad of U.S. citizenship by acknowledgment ofU.S. Department of StateCertificate of a U.S. birth certificateTribal document of native AmericanU.S. citizen I.D. CardI.D. Card of Permanent ResidentEmployment Authorization Card issued by Departmentof Homeland SecurityFor Proof of Identity AloneDriver’s licenseFederal, State or local town or city I.D. cardSchool I.D. card with photoVoter Registration CardU.S. military card and dependents’ cardsNative American Tribunal CardsFor children under 18 for identitySchool recordsHospital or doctor’s recordsDay Care or nursery recordsFALSE STATEMENTS ON FORM I-9 Misrepresentation by an employer on the I-9 form can be a criminal offense. To prove having employed an undocumented alien, the government must prove actual knowledge or constructive knowledge that a person exercising reasonable care would be able to infer that an employee was not authorized to work. The employer is not required, however, to guess. For example if an employee is seeking a labor certification to obtain permanent residence, it does not mean that the employee doesn’t have work authorization. The employer cannot infer that the employee doesn’t have the right to work by an employee’s “foreign appearance or accent”.An advice from the Social Security Administration that the employee’s Social Security number does not match the employee’s name is no proof because the Social Security Administration admits that their records are unreliable.INVESTIGATIONSTo conduct an investigation, the Immigration Customs Enforcement Agency(ICE), must possess reliable information based on an already tested reliable source of the employer’s violation. A particular immigration officer may not justify an investigation by suspicions only. ICE may conduct I-9 audits that are random selections but work sites may only be visited based on confidential sources and reliable witnesses.. Subpoenas may be issued by ICE prior to filing a complaint and an employer may challenge its reasonableness in Federal Court. Without a warrant, ICE officers have no right to enter premises and speak to employees as the Fourth Amendment (Requirement of Reasonable Search and Seizure) protects the employer and employee.HEARINGSThe employer has the right to an Administrative Hearing and the right to be represented by a lawyer. At least 30 days notice is required before the hearing and it must take place at a practicable place for the employer. A written record of the hearing must be taken and only relevant and reliable evidence may be adduced.DEFENSESGood faith and substantial compliance are defenses. The criteria is reasonableness, namely that the documents presented to the employer by the employee reasonably appeared to be genuine. If the employer substantially complied it is also a defense to paperwork violation.CRIMINAL PENALTIESRegular, repeated and intentional activities amounting to a pattern or practice may be used as a basis for a criminal violation. Normally an employer may face a penalty of $3,000 and/or six months in jail if convicted. The government may settle for a fine in lieu of a criminal prosecution.ADMINISTRATIVE AND JUDICIAL REVIEWAn employee receiving an adverse order may seek an appeal within 10 days. A Petition for Review may also be filed in the Court of Appeals after the administrative agency’s decision.
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