Immigration Law Reform and Why it Matters to All Employers

By Steven J. Koehler, Esq.

Last summer, the U.S. Senate overwhelmingly passed the Border Security, Economic Opportunity, and Immigration Modernization Act (“S.744”) addressing various aspects of the immigration process from border and enforcement issues to legal immigration reforms.  The bill has been sitting with the House of Representatives that has not taken up the Senate bill.  It now appears unlikely that the House will take any action on this bill or any other immigration legislation prior to the mid-term elections in November.  While the media has primarily focused on the political theater attendant to the legislative process and the implications of immigration reform for the 11 million undocumented immigrants within the United States, there are important aspects of the proposed legislation that should be examined as it affects all employers.

Employers without the need to hire foreign nationals may assume that they need not consider or comply with the knotty requirements of immigration law and the regulations enforced by U.S. Citizenship and Immigration Services.  To the contrary, there are requirements applicable to all employers, requiring businesses to verify the identity and work authorization status of every employee. The mechanism for compliance is the I-9 Employment Verification Form that every employer should complete on the date of hire or earlier. Failure to comply with this requirement may result in significant fines, loss of government contracts and adverse publicity for an employer.

A number of years ago, in an effort to make the employment verification process more user friendly, the Department of Homeland Security established the E-Verify program, an Internet-based system intended to provide a fast and free way for employers to ensure a legal workforce.  The E-Verify system compares information from an employee’s Employment Eligibility Verification Form I-9 to data from U.S. government records. Because the system is not mandatory, however, less than 1 percent of employers in the U.S. are currently enrolled in E-Verify.

Under S.744, use of the E-Verify system will be made mandatory for all employers over a period of five years.  In general, mandatory use of the system will be implemented based upon the number of employees.  The bill requires E-Verify use within two years by employers with more than 5,000 employees, three years for employers with more than 500 employees, with an exception for agricultural employers, who are given four years. All remaining employers subject to mandatory E-Verify must use the system within four years, with limited exceptions.

The bill requires identity verification through the use of enhanced fraud-proof documents, such as tamper-resistant Social Security cards and the use of a photo tool to allow employers to verify an individual’s identity. The bill (if it becomes law) will take precedence over local and state laws related to the hiring of foreign nationals, creating a uniform national standard.  Employers who fail to comply with E-Verify requirements are subject to increased civil or criminal penalties as are those who knowingly hire, recruit, refer or continue to employ an unauthorized immigrant.

The foregoing is just one example of the reach of the immigration reform proposal currently being debated in Congress.  Immigration laws – and reform proposals – affect the business community in many ways.  It is important for all employers to have an understanding of the scope of these laws and regulations.

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