Firms increase worker scrutiny; Concerns over illegal hiring of immigrants.; Focus of enforcement shifts from employees to employers.

The Atlanta Journal-Constitution
August 24, 2009 Monday
Peralte C. Paul; Staff

Faced with what one Atlanta immigration lawyer calls an "enforcement tsunami," more local companies are running legal checks on their hiring practices and documentation of employees.

The chief concerns, according to Atlanta attorneys: training human resources personnel and hiring managers to spot problems on documents and how to conduct thorough reviews of job applicants' documents to comply with federal regulations without exposing them to potential discrimination lawsuits.

"We are seeing more clients ask about it," said Christopher DiGiorgio, an immigration attorney with Taylor English Duma in Atlanta. "They're saying, 'Are we compliant? Are our I-9s in order?' I think companies are starting to see that this isn't something that we can sweep under the rug."

Immigration and Customs Enforcement officials last month informed Congress that the agency is auditing employers nationwide to see whether they are hiring undocumented workers.

Fines for paperwork violations range from $110 to $1,100, and knowingly hiring undocumented workers can cost a company up to $11,000 per violation.

Immigration attorneys say enterprises in areas such as manufacturing, hotels and hospitality, construction, and janitorial services face additional scrutiny because of past problems with illegal workers.

"This enforcement tsunami is something we've been expecting for a good while, although it's a change in emphasis," said Daryl R. Buffenstein, a partner in the Atlanta office of the immigration law firm Berry Appleman & Leiden.

Under the Bush administration, which sought immigration reform as well, the focus was on illegal employees, he said.

Now, ICE's level of scrutiny hasn't changed with the Obama administration, but the agency seems to be focusing its enforcement on employers, lawyers say.

It explains why a lot of the focus has been on I-9 forms, documents that employees have to fill out, DiGiorgio said. Employees use the information on the form to help decide whether the applicant is legally able to work in this country.

He and other lawyers conduct internal audits of a company's I-9 forms to see whether there are obvious red flags.

Some things he says deserve more scrutiny include misspellings, dates of birth that are inconsistent with ages on driver's licenses and photo identification that doesn't appear to match the actual applicant.

"Under current law, a company is not under a duty to know 100 percent that a document they're given is legitimate," DiGiorgio said. "If it's not clearly fraudulent, then the company can accept it."

The problem is that counterfeiters are getting better, making it hard to tell real documents from fake ones.

"Even basic training isn't going to catch all the small nuances," he said.

It also can't help with red tape for those foreign workers working here legally, said Anton Mertens, an immigration attorney at Smith, Gambrell & Russell in Atlanta.

For example, some states, Georgia included, tie foreign workers' driver's license expiration dates to that of their visas. Because of the backlog in processing the paperwork, a foreign worker might find himself unable to drive to work because his license expires when his visa does --- even if he has an extension that allows him to stay, Mertens said.

States have different requirements on top of federal regulations, making it even more complicated for employers trying to bring in foreign workers, he said.

While an annoyance at best, these kinds of issues can hurt recruitment efforts with foreign investments, Mertens said. Companies looking to expand in North America sometimes go to Canada, which has a less complicated points-based immigration system, he said.

Would-be immigrants to Canada get so many points for age, education level, number of languages spoken, health and whether they have a job offer.

"It's a debate with many sides," Mertens said. "You can't send everybody home and expect they'll be knocking on the door again. Legal immigration gets clogged up as well."

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