Global Immigration Counsel : Immigration Lawyer & Attorney : Littler Mendelson Law Firm : Permanent Residence, Labor Certification : Global Immigration Counsel

HireRight, an international employment screening provider, recently released its 2011 Employment Screening Benchmarking Report (available here). The report, in part, examines employer use of E-Verify, the federal electronic employee verification system. Of the 1,800 human resources, talent management, recruiting, security, safety and compliance professionals surveyed, 51% indicated that they use E-Verify, as compared to 28% in the 2010 report.

Other findings in the 2011 report include:

• 11% of those surveyed reported that although they are not currently using E-Verify, they plan to use it in the future.
• 60% of respondents store Form I-9s exclusively in paper form, 12% digitally store, and 27% use a combination of both. According to HireRight, employers using a paper-based I-9 process are more likely to experience errors, thereby increasing the risk of noncompliance.
• 69% of respondents reported feeling completely or very prepared for a U.S. Immigration and Customs Enforcement (ICE) Notice of Inspection or audit.

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As reported by Politico.com, Immigration and Customs Enforcement (ICE) recently notified 1,000 companies in 50 states that they will be subject to an immigration audit wherein ICE inspects employers’ hiring records, e.g., Form I-9s and supporting documents. This latest round of notices brings the tally to more than 2,300 audits to date in Fiscal Year (FY) 2011 (October 1, 2010 to September 30, 2011), compared to a total of 2,196 during FY 2010.

Audits have been a central theme of the Obama administration’s immigration enforcement strategy. Immigration officials’ focus has shifted to employer, versus employee, noncompliance, the rationale being that the volume of illegal immigration will decrease if employers stop hiring undocumented workers. To prevent such hiring, enforcement agencies use their ability to impose civil and criminal penalties on employers.

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Senator Saxby Chambliss (R–GA) has introduced S. 3912, “The Helping Agriculture Receive Verifiable Employees Securely & Temporarily Act of 2010” (“HARVEST Act”). The HARVEST Act aims to provide a non-amnesty option for temporary agricultural workers, streamline the H-2A temporary worker program, and discourage the hiring of undocumented workers. Additionally, according to Senator Chambliss, the bill would:

• provide a mechanism for addressing the presence of undocumented workers on farms without providing a new path to citizenship;
• ensure that U.S. nationals’ jobs are protected; 
• require the U.S. Department of Labor to increase random audits and investigations of H-2A employers;
• limit the duration of a foreign worker’s continuous stay in the United States without returning to his or her home country;
• require H-2A employers to verify hired agricultural workers’ eligibility; and
• ensure that the H-2A program works for agricultural employers with year-round operations.

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The Houston Chronicle is questioning the efficacy of immigration-related employer audits after obtaining documents concerning 430 “closed” audits conducted by U.S. Immigration and Customs Enforcement (ICE). Although the records revealed potentially egregious violations (e.g., 93% of one audited company’s workforce had “suspect” documents on file), the Chronicle contends that insufficient action was taken in these instances. Instead of levying fines against companies, initiating deportation proceedings against undocumented workers, or criminally charging noncompliant employers, the Chronicle alleges that ICE’s enforcement actions (in most cases, ordering the employer to dismiss the workers with suspect documents) were inadequate.

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Proposed legislation in Pennsylvania and New Jersey would impose stricter work authorization verification requirements on employers.

Pennsylvania

House Bill 1502 would require all contractors and subcontractors on public works projects to verify the employment eligibility of new employees through E-Verify, the federal electronic employment verification system, and to verify existing employees’ Social Security numbers. In June 2010, this bill was referred to the House State Government Committee.

House Bill 1503 would require all construction industry employers to verify the employment eligibility of new employees through E-Verify and to verify existing employees’ Social Security numbers. This bill was passed by the House in June 2010 and is currently in the Senate Labor and Industry Committee.

Employers that in good faith rely on federal programs (E-Verify and the Social Security Number Verification Service) to verify new employees’ legal work status and existing employees’ Social Security numbers will be immune from sanctions. However, employers face debarment from public work contracts (HB 1502) or license forfeiture (HB 1503) for noncompliance. Additionally, employers could face civil liability for retaliating against employees who complain about alleged violations or participate in investigations, hearing or inquiries concerning alleged violations.

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Since October 2009, U.S. Immigration and Customs Enforcement (ICE) has levied over $600,000 in fines against Texas businesses for immigration-related violations ranging from incomplete I-9 records to employment of illegal immigrants, reports the Houston Chronicle. The largest fine ($360,000) imposed on a single business stemmed from an investigation commenced by the Bush administration in 2008. The newspaper’s review of federal records revealed a focus on fining employers rather than arresting undocumented workers, reflecting the Obama administration’s new immigration enforcement strategy that focuses on employer culpability through audits.

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Audits, not raids, are the centerpiece of the Obama administration’s immigration enforcement strategy, reports the New York Times. In the past year, Immigration and Customs Enforcement (ICE) audited over 2,900 business to determine whether illegal immigrants were employed, and, in 2010, it imposed $3 million in civil fines. While audits are less visually dramatic than raids, the effects on workers and businesses are not.

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