License To Work
Failure to properly check applicants’ immigration documents can land employers in trouble.
Can you tell the difference between a phony employment document and the real deal? Would
you know what to do if an applicant offered you a document as proof of his right to work in this
country-but you suspected it was a fake?
If not, get ready: With today's tight labor market and dramatic increases in the number of visas
allowed for foreign workers, it is increasingly likely that you'll be reviewing the documents required by
the Immigration and Naturalization Service (INS) as proof of the right to work in the United States.
And, if you factor in the number of estimated illegal aliens in this nation, you have to consider the
possibility that at least some of the papers you review will be falsified.
The most recent estimates available from the INS (from October 1996) peg the number of illegal
aliens in this country at 5 million. But the numbers may be higher than that.
For example, the U.S. Border Patrol has made almost 75,000 more apprehensions along the
nation’s southwest border this fiscal year than during the same period in FY 1999. That translates to an
increase of 13 percent (636,170 vs. 561,880) with a dramatic spike this February.
Similarly, the number of illegal aliens who voluntarily return to their homelands is up 14 percent,
from 544,312 to 620,447.
While there is no official estimate of the number of fake Resident Alien Cards (known as green
cards) or Social Security numbers in circulation, anecdotal evidence suggests that there is no dearth of
phony paperwork.
For example, in November 1998, INS agents seized over 2 million counterfeit documents in Los
Angeles, including green cards, Social Security cards and drivers' licenses from nine different states.
The documents were worth a minimum of $800 million on Los Angeles' streets, INS reported. The INS
estimated that some of the documents, such as green cards, would sell for as little as $40.
The proliferation of such inexpensive forgeries is not news to Fred Giles, vice president of
Pinkerton Service Group in Charlotte, N.C., who says, "You can buy them on many street comers and in
most parks in California, Florida and Texas."
Misuse of Social Security cards is also far from uncommon. The U.S. Inspector General for the
Social Security Administration (SSA) has set up a hotline for people to report suspected Social Security
fraud. The number of calls flowing into the hotline - which is (800) 269-0271 -soared nearly tenfold in
recent years, from 7,900 calls in 1997, to 10,900 in 1998 and 74,360 in 1999.
Mark Hinkle, a public affairs specialist for the SSA, notes that more manpower and resources
were added to the hotline in 1999, which may help to explain the dramatic jump in hotline calls.
He also adds that 39 percent - or approximately 29,000 – of those calls dealt with Social Security
number misuses, which include not only "misuses on employment but also any type of Social Security
number misuse, like theft or trying to get credit."
Even so, the hotline activity shows the potential for abuse of Social Security numbers.
Weeding Out the Wrong Ones
Employee screening/selection is one of the top five threats, according to the Pinkerton Top
Security Threats and Management Issues Facing Corporate America Year 2000 Survey of Fortune 1000
Companies. This becomes particularly tricky for human resource departments when dealing with
immigrants, both legal and illegal.
One reason is volume. There are a combination of 29 documents - including Social Security
cards, birth certificates and green cards - that applicants can present to establish their identity and
employment eligibility for the I-9 process.
Bill Strassberger, a lawyer for the INS, says that a 1996 law reduced the number of documents
from 29 to about a dozen. However, the final number of documents has yet to be finalized. Until it is, all
29 documents are still acceptable, he says.
When reviewing these documents, it is critical that HR professionals make a good-faith effort to
ensure their validity.
What is good faith? If an employer cannot tell that a document is a fake and has no reason to
believe it's forged, that company has made a good-faith effort, says Timothy S. Bland, an attorney for
Ford & Harrison LLP in Memphis.
"I have come to believe that employers make a solid good-faith effort," says Strassberger. "They
don't want the problems that come with not doing so."
Those problems can include civil money penalties for employers that knowingly hire
unauthorized aliens, says Strassberger. For a first offense, the penalty is between $250 and $2,000 for
each unauthorized alien. For a second offense, the cost is $2,000 to $5,000 each. For subsequent
offenses, the price tag is between $3,000 and $10,000.
These fines increase if the INS determines that an employer is engaging in a pattern of hiring
illegal aliens; punishment can even include imprisonment.
Still, the definition of good faith remains somewhat fuzzy. Obviously, if a person gives you a
Social Security card that is drawn in crayon and you accept it, you're going to be in trouble, says Bland.
Strassberger says that if the INS does an audit and finds one out of 100 employees who are not
supposed to be working, the agency won't take that as a sign of a major problem. It will see things
differently, however, if it finds 20 out of 30 people working illegally.
"We're not out to get people," says Strassberger. "We want to work with the companies. We don't
have quotas to fill."
Even if the INS doesn't detect any problems, the Equal Employment Opportunity Commission
(EEOC) might. Last October, the EEOC put into effect enforcement guidance on remedies available to
undocumented workers under federal employment discrimination laws. These give workers - whether or
not they are in the country legally - the ability to sue their employers for discrimination.
This means that employers that fail to properly review I-9 documents may be opening
themselves up to suits they otherwise wouldn't have faced.
Bland says employers could find out that they've hired illegal aliens and terminate them, only to
have them file a claim with the EEOC. Or, if the employees filed an EEOC claim before the company's
termination decision, the company might appear to be retaliating against the employees, which is illegal.
Avoiding EEOC discrimination lawsuits is relatively simple, says Strassberger. "You cannot ask
for any of [these documents] before you hire the person," he says. "That's discrimination. You must hire
them first, then have them supply you with the right documents. You can't ask for them first and then
say 'You're hired.' "
How to Protect and Detect
The easiest way to prevent these problems is to do a background check. The cost depends on the
criteria being checked. A simple background check on criminal records, Social Security number,
education and previous employment may take only two or three days and cost about $50. More laborintensive searches will take longer and can cost $200 to $300.
If you don't have the funds to hire someone to do a background check, there are ways to get it
done - but they require an investment of time. The Internet is full of useful sites and is a great place to
start.
Another place to turn, says Giles, is The Guide to Background Investigations (TISI-National
Employment Screening Service, 1998).
For those who are trying to figure out if they need to hire an outside company to do a
background check or who just want to do their utmost to avoid breaking the law, experts offer the
following red flags to watch out for:
Social Security cards. "If a Social Security card is laminated, it's not legal," and employers
should not accept it, says Stephen Richardson, public affairs specialist for the SSA, who has 15 years of
experience as a field officer. Laminated cards can mask the phony paper used in a forgery. "The card has
remained consistent over the years," says Richardson. "The paper stock is the same; the names and the
numbers are always typewritten in black."
Other than these obvious tips, says Richardson, it will be hard for an untrained eye to pick out
phony cards. The best bet is to call the SSA at (800) 772-6270. You can verify up to five numbers with
one call. To do so, you will need the person's last name, first name, middle initial, date of birth and sex.
To check between five and 50 Social Security numbers, you can submit a written list to your
local SSA office. Hinkle says that local offices accept faxes.
However, to avoid potential discrimination suits, employers should check Social Security
numbers for all applicants - not just those who appear suspicious - suggests Anne St. Martin, PHR, an
information specialist with the Society for Human Resource Management's Information Center.
For
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Green cards. In April 1998, the INS issued new high-tech green cards. The green cards (which
haven't actually been green since 1974) have a whole gamut of digital images - as well as an optical
memory strip and micro printing-that make them extremely hard to duplicate.
For example: "All the flags of the United States are on the card, but they look like a black line,"
says Strassberger.
There also is a series of dots across the card. These dots are actually images of U.S. presidents'
heads and are difficult, if not impossible, to duplicate.
The green cards are good for 10 years, and the INS predicts that the old cards will be out of
circulation by 2008, says Strassberger. In 1996, all green cards prior to 1979 became obsolete.
Strassberger also says that green cards that have raised photos may be forgeries.
The easiest way to check green cards and work status is to contact your local INS office. A good
way to get started is to request a Handbook for Employers: Instructions for Completing Form 1-9, also
known as the M- 274.
Another good document is A Guide to Selected US. Travel/Identity Documents for Law
Enforcement Officers, also known as the M-396. This documents shows, in color, what a proper I.D.
should look like.
General tips
•
Be suspicious of cards and documents with fuzzy printing.
•
The most common documents-such as Social Security cards and drivers' licenses-are also the
ones most commonly counterfeited. Many of the other documents the INS uses are less
frequently counterfeited.
•
Photocopy all the documents a prospective employee gives you. This will help show your good
faith effort, says Strassberger. Doing so proves that you at least asked for the proper documents.
It also may show that the documents appeared legitimate.
By Russell V. Gerbman, HR Magazine Online, June 2000