Immigration Issues that Educational Institutions Must Address

All U.S. employers, whether the employer is the restaurant on the corner or a school district, must comply with the Immigration and Reform and Control Act ("IRCA") of 1986. IRCA requires all U.S. employers to complete an I-9 (Employment Eligibility Verification) form within the first three days of employment in order to verify the identity and work authorization of all workers, including U.S. citizens, that the employer has hired after November 6, 1986.

The law enables U.S. Immigration and Customs Enforcement ("ICE") to levy penalties in the thousands of dollars for each worker that it determines that the employer knowingly hired without authorization. The definition of "knowingly" is broad and expanding. It can include "constructive knowledge." ICE often alleges that constructive knowledge may be inferred when the employer fails to properly complete the I-9 form or spots warning signs on the form that indicate the worker may be presenting false documents. It also may exist when the employer receives a "no match" letter from the U.S. Social Security Administration ("SSA") and fails to investigate further. A "no match" letter, which may be issued by either SSA or, in some cases, the U.S. Department of Homeland Security ("DHS"), provides the employer with information that the government records relating to the employee's name and Social Security Number do not match (in the case of SSA) or name and work authorization do no match (in the case of DHS). Further, some employers, such as those who hold certain types of federal contracts, may need to complete the I-9 process in concert with using an E-Verify system that provides employers with an additional tool to identify new hires who may be presenting false documents during the I-9 process. Even where the employer has not knowingly employed any undocumented workers, the U.S. government can fine the employer between $110 and $1,100 per worker for "paperwork violations" which can include failing to complete an I-9 form or completing the form in a defective fashion. Such penalties can add up swiftly in large organizations.

For many years, the U.S. government did not aggressively enforce IRCA and the related I-9 process. September 11th changed the dynamic in dramatic fashion. ICE and kindred U.S. government agencies are actively auditing U.S. employers and, where they discover undocumented workers, they are often raiding the employers. The ICE website adds information about new raids almost every week. One notable development over the past year is that ICE is increasingly arresting managers at U.S. organizations in connection with these raids and charging them with crimes relating to knowingly hiring unauthorized workers and/or harboring them. ICE is even applying asset forfeiture provisions to both the organizations and the managers in some cases. ICE obviously views this approach as a way to deter organizations that do not take IRCA seriously and which turn a blind eye to the presence of undocumented workers. In many cases, the undocumented workers use the stolen identities of U.S. citizens to secure fraudulent documents and present them to the employer during the I-9 intake process.

Educational institutions are not without tools to ensure that they do not become the subject of tomorrow's press release. Instituting sound I-9 verification procedures as part of one's hiring process and conducting annual self-audits can help ensure that your organization is compliant. Dinsmore & Shohl offers one or two-hour I-9 training (led by a former attorney with the U.S. Department of Justice) and materials for an organization's staff that deals with the hire process. We also offer additional support such as guidance on how to conduct your own self-audit, and, as needed, technical support when I-9 questions arise during or after hire, such as when you receive a "no match letter" or tip that a worker on your staff may be undocumented.

Educational institutions also may tap into an attorney with immigration experience when they wish to hire a foreign national workers. Our team has decades of experience in handling a wide variety of employer-sponsored work visa (and permanent residence) cases, including but not limited to H-1B and O-1 visa cases.

Finally, school districts increasingly encounter children who wish to enroll in the schools of the district whose unlawful immigration status and/or that of their parents is in question. In addition to counseling districts on the legal or constitutional issues involved in educating these children, our immigration practice group can provide guidance and support on what action the district must take to investigate the immigration compliance issues that oftentimes arise in these scenarios. We also can help you to sponsor foreign students and exchange visitors who wish to attend your institutions.

Hence, immigration issues are more pervasive than one may think in the world of education. If you have a need for support in this area, please feel free to contact your attorney.