Two recent events—the increased frequency of raids and notices of inspection by Immigration and Customs Enforcement (ICE) and the Social Security Administration (SSA) resuming its practice of issuing employer correction required notices (sometimes called "no-match" letters) are making companies re-examine their own compliance with federal immigration laws. Where it gets tricky is trying to balance those laws with the many employment laws that also apply.

For example, on the one hand, the federal Immigration Reform and Control Act of 1986 (IRCA) requires employers to verify that all workers have eligibility to work in the United States. To do this, employers of any size must ensure that the Form I-9 is completed and retained properly. On the other hand, the federal Immigration and Nationality Act (INA), as amended by IRCA, prohibits employers from engaging in discrimination with respect to hiring based on an individual's real or perceived citizenship, national origin or immigration status. These anti- discrimination requirements contained in the immigration statutes apply to employers who have between four and 14 employees. The Florida Civil Rights Act (FCRA) and Title VII, which apply to employers with 15 or more employees, prohibit discrimination based on, among other things, race and national origin.

So, how do employers handle what seems to be a conflict among all of these laws in the hiring process? It is logical to want to avoid the issues associated with ICE raids. Unless you are required by a federal, state, or local law, or a government contract that requires you to only hire U.S. citizens, make sure your employment application is not asking any questions about citizenship or the nature of an applicant's work status. Generally, the only questions you may ask are: whether the applicant is legally authorized to work in the United States; whether the applicant is legally authorized to work for your company. It is important to make sure that anyone who is handling interviews knows not to ask questions that would call for an answer about the applicant's citizenship or national origin. Finally, do not use the I-9 form as a screening tool. You cannot ask someone to complete that form until you have offered employment and the individual has accepted the job.

Another example of when it becomes challenging to balance the various employment and immigration laws is when you receive those no-match letters telling you that an employee's name or Social Security number listed on the employee's W-2 does not match SSA records. A no-match letter does not mean the employee is unauthorized to work in the United States. There could be many reasons for the no-match, such as, a name change, a typographical error or an error within the SSA database. Do not suspend or fire the employee or have the employee complete a new I-9 as those actions could violate both the immigration and discrimination laws. Do not throw away the letter and hope for the best. If you choose to do nothing, ICE could perceive that inaction as evidence that you had constructive knowledge of potential immigration issues. Rather:

• Comply with the letter by logging onto the website called the Business Services Online and ensure you make any necessary corrections within the time allotted;
• Review your records to look for and to correct any errors, name changes, etc.;
• If your records are correct, notify the employees about the letter and ask them to try to resolve the issue with SSA within 30 days;
• Document your instructions to the employees and follow up with them;
• Proceed cautiously and work with experienced employment counsel before taking any adverse employment action.

What if the employee tells you during this process that he is undocumented or admits that he is not able to lawfully work in the United States? Under that circumstance, you should terminate the employment. Otherwise, you could face fines and penalties for knowingly continuing to employ an individual who is not authorized to work.

Here is another common scenario—the employee tells you that he gave you a fake name and Social Security number originally, but now has a valid number. This can happen during the no-match process or just during the span of someone's employment. United States Citizenship and Immigration Services (USCIS) takes the position the immigration laws do not require you to fire the employee. But, what about those discrimination laws? How do those come into play? What if you decide to allow the Hispanic male who admitted to previously working under a fake name or Social Security number to remain employed. However, you recently fired a Caucasian woman because you learned that she lied on her employment application about where she worked before or the reason she left her former employer? You might face gender and national origin discrimination claims. You will need to know how you've handled other situations where employees provided false information, such as their prior job experience, their degree, or think about what precedent you want to set in the future. Knowledge about the applicable laws and consistence are keys to maintaining the right balance and reducing potential liability.

Laurie Riley is a partner in the labor and employment practice group at Jones Walker in Miami. She focuses on employment litigation.