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E-Verify

Have You Hired an Undocumented Alien Lately?

The Arizona Legal Workers Act became effective January 1, 2008, the state law that provides severe sanctions on employers who hire undocumented workers. Several groups filed lawsuits seeking to block implementation of the law. However, on February 7th, Federal Judge Wake upheld the law and found it constitutional. While the judge's ruling may be appealed to the Court of Appeals, for practical purposes, the law is now in full force and effective.

As you likely know, the law requires sanctions against employers who knowingly employ an undocumented alien. The penalty for a first violation is a possible suspension of your business licenses for 10 days while a second violation will result in the permanent revocation of your business licenses. The law applies to all business licenses, including corporate charter, as well as all business permits and sales tax licenses.

When a complaint is filed, the attorney general or county attorney must investigate to verify the work authorization. If the complaint is not frivolous, they will notify ICE, local law enforcement and the county officials in the county where the employer's non-complying operation is located, and the local officials must then bring action against the employer.

One requirement of the law is that all employers must sign up for E-Verify. If you hire an undocumented alien and did not sign up or use E-Verify, the consequences are severe. Use of E-Verify is free. Your company can sign up at www.vis-dhs.com. We recommend that you use the E-Verify system for all new hires (but not for existing hires). Using E-Verify provides some protection even if you hire an undocumented worker. If the law is overturned on appeal, you can un-enroll in the E-Verify program with 30 day written notice.

Because you must comply with both state and federal laws, it is an excellent time to audit your company's employment records against I-9 forms to make sure you have documents for every employee. You must have an I-9 for every current employee. You must maintain I-9 records for employees who no longer work for you and keep I-9's for three years after the date of hire or one year after termination. We recommend that you keep I-9's for all employees who have worked for you at any time in the last three years or face serious federal sanctions. Additionally, there is a new I-9 form that you must use. The new form and handbook are available for free at www.uscis.gov. You must continue to use the I-9 employment verification process as well as using E-Verify.

Keep in mind that you cannot hire unauthorized alien workers AND you cannot discriminate on the basis of race or national origin under Title VII of the Civil Rights Act of 1964.

You may have heard about "no match" letters. These are sent when the social security number and name of an employee on an employer's records do not match with federal records. Last year, the SSA adopted a comprehensive set of procedures as to how to deal with "no match" letters that are sent to employers including proposed notices and cures. A lawsuit was filed to block implementation of the new procedures and a federal judge issued a temporary restraining order so the new procedures did not become effective. DHS has until March 2008 to develop or amend regulations/procedures regarding notifications to accompany the "no-match" letters sent annually to employers. You probably will not receive a "no match" letter at this time, but if you do you should seek legal advice.

The immigration and employment landscape continues to radically evolve. In addition to the court challenges, several bills were introduced at the start of Arizona's legislative session seeking to amend or change the Arizona Legal Workers Act. As a result, you should keep your eyes open for yet more changes.

Kraig Marton is an attorney with Jaburg & Wilk, P.C. Kraig has extensive employment law experience, primarily representing employees and small to mid-size employers. Kraig has litigated numerous employment cases including discrimination, wrongful discharge, sexual harassment, whistle blowing, and wage and hour claims. He is responsible for many noteworthy reported employment decisions and he sees himself as a protector of the "little guy."