http://www.azcentral.com/arizonarepublic/business/articles/0429biz-hires04229.html

Hiring as 'good faith' process Feds now asking businesses to go beyond regular rules to verify worker legal status

Jonathan J. Higuera The Arizona Republic Apr. 29, 2006 12:00 AM

As top federal immigration officials implore companies hiring new workers to show "good-faith efforts" to verify their legal status and go beyond the federally required I-9 process, employers are asking what constitutes good faith.

For Immigration and Customs Enforcement officials, "good faith" could be using a voluntary program to check an applicant's Social Security number against federal databases to make sure it matches with the job seeker's name.

Or "good faith" may be a more diligent review of documents presented by the job seeker.

"Rather than saying 'I'm doing what I have to,' you can say 'I'm doing all that I can,' " said Roberto Medina, ICE's special agent in charge of Arizona.

The process, known as the I-9 process, requires employers to get documents from a new hire that shows they are authorized to work in the United States and a photo ID that verifies they are who they say they are. About 30 documents can be used to satisfy those requirements, from a passport to driver's license to Social Security card to a certified birth certificate. It is all that is required by federal law of employers when hiring a worker.

ICE acknowledges that it can't force employers to use the Basic Pilot Verification Program, as it is known, but they do plan to evaluate what a business has done to verify a document's authenticity.

At a news conference last week announcing an undercover probe of IFCO Systems, a Dutch company that makes and repairs pallets, ICE officials said they will no longer allow "a wink and nod" system of employers who say they were duped by fake documents.

The request from ICE to go beyond the I-9 process has some labor lawyers and business representatives concerned. Under the law, an employer may be committing discrimination if he or she questions documents that appear valid or require more than what the I-9 process requires.

"If you start looking into the validity of documents that on their face appear valid, the new hire can charge you with discrimination," said Laura Reiff, an immigration lawyer in Washington, D.C., and co-chair of the Essential Worker Coalition, which is pushing Congress for immigration reform that would include a path to legalization for undocumented workers in good standing.

In a news conference last week to announced stepped-up enforcement against employers who hire undocumented workers, ICE officials made it clear they are after the most serious offenders: those that knowingly and intentionally hire undocumented workers to gain profits and unfair competitive advantages. But they acknowledge that businesses that may have been duped or simply filled out paperwork incorrectly could face some penalties as well.

"We are not going to unilaterally go out and pop in on businesses and round up every illegal alien," Medina said. "Those gains would be short-lived. But no business should be surprised if they get a call from us for an audit."

That's what concerns many employers, especially smaller ones that don't have human resources departments trained in the I-9 process.

Many employers have long said they should not be required to verify the validity of documents that appear real.

"The pressure should not be on small businesses to do more checking," said Julian Nabozny, who owns five Valley McDonald's Restaurants. "We have enough to worry about providing services, a good work environment, maintaining quality and other things. We don't need more directives from government imposing more work on our staffs."

But ICE said those extra efforts could help sway them when deciding whether a company willfully hired undocumented immigrants, was negligent in its hiring practice or simply duped. Even if an audit or probe doesn't find evidence of criminality, civil and administrative fines can range from $250 to $10,000 a violation.

With 40 new agents coming to Arizona, ICE said the number of audits will increase at all sizes and manner of businesses. And ICE officials pointed out that they don't need evidence to initiate an audit, although many investigations are sparked by complaints and tips, officials said.

"We don't have to go out looking for work," Medina said. "The work comes to us."

ICE must give employers a three-day notice before an audit, unless the employer consents to do it sooner.

The increase in audits shouldn't stress employers who have followed the I-9 process, said Julie Pace, a Phoenix labor lawyer with Stinson Morrison Hecker.

"It's a very common thing for businesses to have government audits on their paperwork," she said. "It's just another one to deal with."

But they may want to review their hiring practices and make sure they or their human resources employees are fully trained on I-9, she said.

Reach the reporter at (602) 444-8831.