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I-9 Audits

Frequently Asked Questions about I-9 Audits, No-Match Letters and E-Verify

Prepared by the Dignity Campaign for Immigration Reform Based on Human and Labor Rights

What is an I-9 audit?

Immigration law requires employers to verify every worker’s immigration status.  Job applicants fill out an I-9 form declaring their immigration status, and must provide two pieces of identification. Employers must also demand a Social Security card. Those forms are kept in the employers’ personnel files.

In an I-9 audit, the Bureau of Immigration and Customs Enforcement (ICE), part of the Department of Homeland Security, makes a detailed examination of those personnel records, especially Social Security numbers.  ICE agents then give the employer a list of workers it says are undocumented, and orders the employer to fire the workers. This leads to massive firings.  In the last two years thousands of janitors have been fired in Minneapolis, Seattle and San Francisco, thousands of garment workers in Los Angeles, hundreds at Chipotle fast food restaurants and Target stores, and many many more.

Employers who cooperate in firing their own workers are given immunity by ICE, and escape any fines or punishment for violating the law.  Most employers who have been audited have not been sweatshops or fly-by-night contractors.  ICE has concentrated on employers with unions, or who pay more than the minimum wage.

What is a no-match letter?

The Social Security Administration letters to employers, which contain lists of workers whose SS numbers don’t match their database.  SSA was forced by immigrant rights groups and unions to include language in these letters telling employers that being on the list doesn’t necessarily mean a worker doesn’t have legal immigration status.  Most employers, however, treat it that way and fire workers on the list. Unions, the ACLU and the National Immigration Law Center got a restraining order against a Bush-era regulation that would have sent no-match letters to all employers, forcing them to fire all workers listed (potentially 8-9 million people).  The present administration stopped sending the letters for awhile, but has now started again.

What is E-Verify?

E-Verify is an electronic database maintained by ICE, intended to identify the immigration status of every worker.  It is primarily based on Social Security numbers.   Today employers with Federal contracts are required to check this database before hiring any worker to make sure they have “work authorization,” which means legal immigration status.  Increasingly, employers now check the database and fire workers who the database says are undocumented.  Many states have passed laws requiring employers to use the E-Verify database as well. Both the E-Verify and Social Security database are full of errors, which would cause even workers who are citizens or legal residents to lose their jobs.  The main impact, however, of E-Verify is on undocumented workers themselves, and its use could lead to millions losing their jobs.

What section of immigration law are these tactics enforcing?

They all enforce a provision of the Immigration Reform and Control Act of 1986, called employer sanctions. That act makes it illegal for an employer to hire a worker who has no legal immigration status, and makes it illegal for such a worker to have a job. It penalizes the employer for hiring undocumented workers (the “sanctions”), and also penalizes workers by requiring the employer to fire them. On the surface this looks like an anti-employer law. In reality it’s an anti-worker law. Its real effect is that it makes it illegal for an undocumented worker to have a job. Employers dependent on immigrant labor treat the possibility of violations and fines (which are not great) simply as a cost of doing business.  In realtiy, most employers receive no penalty at all, while thousand of workers lose their jobs and their families and communities suffer great hardships.

How were sanctions passed into law?

Immigration authorities and anti-immigration groups advocated sanctions for many years before the law passed in 1986. The justification for sanctions was then, and still is today, that if people cannot work, pay rent, buy food or send money home to their families, they will leave the U.S. and that others won’t come in the future. The law was strongly opposed by civil rights, religious and immigrant rights groups, and a few unions. Finally, the law was passed in 1986 when its backers agreed to a legalization program, which offered people who had immigrated without documents before 1982 the chance to normalize their status.

Can sanctions stop undocumented immigration?

No. Employer sanctions have little or no effect on whether people come to the US looking for work. They have not led to any significant number of people leaving the country.  Instead, they have led to massive firings, and terrorized workers in the workplace.  The law made undocumented people much more vulnerable to employer pressure, and fearful about advocating their rights.

People mostly immigrate to the U.S. for reasons of poverty, war and lack of opportunity. As the U.S. has imposed more free trade agreements on Mexico, Central America and other countries, along with economic reforms to benefit corporate investors, more people have been forced to leave home to find work and survive. Employer sanctions do nothing about this economic pressure that forces people to migrate. Over 200 million people in the world today have left the countries where they were born. Migration is a global phenomenon, and only social and economic justice will create a world where migration is not a means of survival.

How does immigration enforcement affect workers’ right to organize?

No-match letters, I-9 audits and E-Verify are all methods for enforcing employer sanctions, and have led to the firing and blacklisting of many union activists. This practice has created an atmosphere in which workers fear to protest low wages and bad conditions.

Employer sanctions put the enforcement of immigration law into the employers’ hands.  ICE is not supposed to use enforcement to help employers fight unions, but the record shows this often happens.  ICE and employers have cooperated to verify I-9 forms when workers start organizing or protesting bad conditions, as a way of terrorizing people and getting rid of union activists.  Shine Building Maintenance used the verification process to get rid of pro-union workers at the start of the Justice for Janitors campaign at Apple Computer. Hundreds of apple packinghouse workers were fired when they tried to join the Teamsters Union in Washington State.  When workers were organizing into the UFCW at the huge Smithfield meatpacking plant in North Carolina there were two raids and a hundreds of no-match firings. There are many other examples.

The National Labor Relations Act makes it illegal to fire a worker for union activity. but the Supreme Court’s Sure-Tan and Hoffman decisions say that when employers fire undocumented workers for organizing, they don’t have to give them back their jobs or pay them back pay.  This was a terrible precedent, removing any penalty on employers who fire undocumented workers for union activity.  While labor law says all workers have the same rights, these decisions separate workers into two categories — those who have enforceable labor rights, and those who don’t.

In the past, ICE has also used audits and no-match letters to make lists of workers it intends to arrest in raids, as they did at Smithfield, Agriprocessors and other meatpacking companies. The administration says I-9 audtis and firings are a “softer” method of immigration enforcement, but there is no promise that ICE will not resume workplace raids, and in fact, the agency deported almost 400,000 people in 2010.

What other impacts have employer sanctions had on workers?

Undocumented workers are barred from receiving unemployment benefits, or Social Security retirement and disability benefits, despite the fact that contributions are made in their names. This makes the consequences of losing a job or getting sick much greater for them, and puts pressure on them not to complain or organize. This also is the result of the application of employer sanctions.

The INS for some years required Department of Labor inspectors to look at the I-9 forms whenever they did an inspection for wage and hour violations, and to turn over the names of undocumented people to immigration authorities. This made undocumented workers reluctant to make complaints over unpaid overtime and other violations. DoL agreed to stop the practice, but many workers are still afraid to make complaints.  Today new proposals have been made in Congress to require checks of immigration status during labor law enforcement.

Do employer sanctions just affect immigrants?

They affect all workers.  Often immigrant workers, including the undocumented, assert their rights and try to organize unions in workplaces where immigrant and native-born people work together. Organizing helps them all, since they have the same goal of raising wages, improving conditions and enforcing workplace rights.  But employer sanctions undermine the ability of immigrants to organize.  When it becomes harder for them, non-immigrant workers have a harder time organizing too.

The hotel union, UNITE HERE, calls for balancing the needs of immigrants and other communities with a history of discrimination and high unemployment, especially African-Americans. The union says that sanctions enforcement divides people and pits them against each other, making organizing more difficult. On the other hand, enforcing immigrant rights, stronger affirmative action to require employers to hire from communities with high unemployment, and protecting the workplace and labor rights of all workers, lifts the conditions of everyone.

Won’t I-9 audits and other immigration enforcement actions lead to better working conditions by forcing employers to hire workers with visas, and pay them more?

No.  We already have laws that set standards for wages, hours and working conditions.  To create better conditions, those laws should be enforced, and stronger laws enacted.  Many employers constantly seek a supply of low-paid labor, and will continue to do so.  They see immigrants as a vulnerable group that can be exploited easily and paid less. Sanctions have not deterred them from this exploitation, which existed long before the 1986 act was passed.

Wages and conditions in immigrant-dependent industries won’t go up unless unions and workers organize, and advocate for improvements. Employer sanctions are a big obstacle standing in the way. Instead of pressuring employers to improve conditions, sanctions create a second-class group of workers who have far fewer rights, and make it more difficult for those workers to organize.

What can unions and communities do to defend workers against sanctions?

Some unions have tried to help workers when audits have taken place by negotiating extensions of time before the firings, and recall rights if people are able to legalize their status.  At Pacific Steel in Berkeley, the GMP has been trying to stop and I-9 audit and firings with a combination of legal challenges and political and community mobilization.  In years past, unions challenged the firing of workers listed in no-match letters, and UNITE HERE Local 2 won a decision saying that such firings violated its contract.  Other unions have tried to include language in contracts that require employers to notify workers and the union when ICE threatens an audit.

In the 1980s GMP Local 164B won a decision keeping immigration agents from barring the doors of workplaces, holding workers hostage while interrogating them about their status.  Unions and immigrant advocates won a temporary restraining order against the implementation of the Bush-era regulation requiring no-match checks in every workplace, although the administration today is conducting such checks on a piecemeal basis.

Community organizations and legal advocacy groups have helped workers to find ways to apply for legal status where possible.  They have conducted know-your-rights training to help people resist raids and other enforcement actions and gain confidence in asserting their rights.  Together, unions and community organizations can bring political pressure to bear on ICE and DHS to force the administration to stop individual audits or enforcement actions.

Nevertheless, enforcement actions including I-9 audits, no-match letters and E-Verify will continue unless the law is changed and employer sanctions are repealed.  The AFL-CIO supported sanctions when the 1986 law was originally passed, despite opposition. In 1999, the federation reversed its position, and called for the repeal of employer sanctions, along with a legalization program for undocumented workers, and increased enforcement of labor protections, including the right to organize.  Since then, many labor unions have made organizing immigrant workers an important priority.

For the last few years many Washington DC lobbyists have argued that repealing employer sanctions is impossible.  They have advocated supporting increased enforcement and guest worker contract labor programs as a tradeoff to win some degree of legalization for undocumented people.  Many unions and community organizations reject this.  They call instead for an immigration policy based on human and labor rights.  One proposal that embodies these values is the Dignity Campaign.

Discussion

2 thoughts on “I-9 Audits

  1. I have a question on I-9 audits. My company is conducting an audit at the present time and is asking for our IDs to justify our employment. I am a citizen and have nothing to hide but I don’t believe I have to provide my information again if I gave that information when I was hired. When I was researching I-9 audits, I found that there are companies advertising to companies to go through a voluntary I-9 audit in order to make sure they are compliant with the federal laws. My question is, am I mandated to give my information again? If this turns out to be a voluntary I-9 audit, am I mandated to give my information? I want to dispute this if possible. Any information you have will be a great help.

    Posted by achoffin | March 12, 2013, 8:46 am
  2. Your article states “Employers must also demand a Social Security card” as part of the I-9 verification process. I just wanted to point out that this is incorrect. Under the law the employer cannot require the employee to present specific documents to complete the I-9 and cannot require the employee to present a social security card as part of the I-9 process. Many employees choose to present a driver’s license and social security card for the I-9 verification process. However, if an employee presents other documents that are acceptable, the employer cannot demand to see the new employee’s social security card for purposes of completing the I-9. For example, if an employee presents a document that proves both identity and work authorization, such as a US Passport or Permanent Resident Card, that would be the only document necessary to complete the I-9.

    Posted by emily curray | May 7, 2013, 6:08 am

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