By Josie Gonzalez, Chair of AILA’s Verification and Documentation Committee

Picketing of Chipotle locations by the Service Employees International Union and community organizations last week after an ICE I-9 investigation uncovered the use of false documents was misdirected. The dramatic, painful and disruptive manner in which hundreds of Chipotle workers were discharged is the direct result of ICE’s callous manner of delivering its Notice of Suspect Documents, issued during the course of an I-9 inspection.

The issuance of a Notice of Suspect Documents can not only devastate a workforce and render a company unable to fulfill key contracts, it can also abruptly disrupt the livelihood of essential workers. Rightly or wrongly, these workers have considered the U.S. their home, and have been vital to the employer’s operations. They have contributed social security withholdings and taxes, thus helping to keep our fragile economy afloat.

When an ICE notice is received, the most critical issue that employers need to address is how rapidly to respond to and resolve the discrepancies contained therein. The notice cautions that unless the employee presents valid identification and employment authorization, other than the documentation previously submitted, the employee is considered unauthorized, and continued employment can result in civil penalties ranging from $375 to $3,200 per unauthorized alien for a first violation. As the notice admonishes: “This is a very serious matter that requires your immediate attention.”

Glaringly absent from the notice is: 1) any guidance on how to resolve the discrepancies, other than to contact the Special Agent if it is felt that the notice is erroneous; or 2) how much time an employer has to resolve the discrepancies.

According to published accounts, Chipotle executives said that their pleas for a modest 90 day grace period to resolve the issues raised went unheeded. The AILA Verification and Documentation Committee has made the same pleas to ICE, asking for the adoption of a fair and humane policy regarding the time period for an employer to adequately address “no-match” letters.

In an ICE regulation (72 Fed. Reg. 45,611 (Aug. 15, 2007)) that was rescinded in November 2009, DHS provided for a 90 day safe harbor period for resolving no-match issues. Since its rescission, ICE field offices have, in a seemingly random fashion and without national guidance, decided the appropriate time period, which can range from days to a couple of weeks. In some cases, ICE has provided no time frame whatsoever.

Absent regulatory or policy guidance, the employer is walking on a minefield if the employer fails to take prompt action to discharge employees suspected of working illegally. If a land mine explodes, the employer faces civil or criminal liability for knowingly continuing the employment of unauthorized workers under a “constructive knowledge” standard.

In addition to redirecting the picketing to ICE offices, how about also taking it to Congress, which has failed to address the labor needs of American employers? Employers trying to follow the rules set forth in the Immigration Reform and Control Act of 1986 should not be expected to be document fraud experts. Their task is to simply ask for identity and work authorization documents and to record them on a Form I-9. Yes, ICE may argue that it has established E-Verify to check the legitimacy of documents at the time of hire. But, what about the hundreds of thousands of employees who have been hired over the last nearly three decades – employees who are vital to this country’s continued economic viability?