Bill Would Significantly Increase Employer Penalties for Hiring Illegal Workers

Rep. Sue Wilkins Myrick (R-NC) has reintroduced legislation that would amend the Immigration and Nationality Act to substantially increase employer penalties for violations. The 10k Run for the Border Act (H.R. 1698) would increase the fines for knowingly hiring or recruiting an undocumented worker, or continuing to employ an illegal alien when the employee’s legal status changes or becomes known.

Under the terms of this bill, an employer could be fined between $10,000 and $80,000 for each violation, an increase from the current $250-$2,000 penalty range. For an employer with a prior violation, the penalties would be increased to between $80,000 and $200,000, up from $2,000 to $5,000 per violation under current law. For a repeat offender, the fine skyrockets to a range of $120,000 to $1.6 million. The current fine for such a repeat offense is a minimum penalty of $3,000 and a maximum of $10,000.

If state or local law enforcement officials provide material assistance in investigating or prosecuting employers that are in violation of this law, they are entitled to 80 percent of the fines paid by those employers. It follows that such large financial incentives would increase enforcement.

The provisions of this amendment would take effect on the day of enactment. Prior versions of this bill have been introduced within the past six years, but have failed to advance.

Photo credit: Kameleon007

Supreme Court Upholds Arizona Law that Sanctions Employers for Hiring Illegal Workers, Mandates Use of E-Verify

The Supreme Court has held that an Arizona law that imposes sanctions on employers that hire unauthorized workers and requires the mandatory use of E-Verify is not preempted by federal law, and therefore valid. The Arizona law at issue – the Legal Arizona Workers Act – provides for the suspension or revocation of an employer’s business license in that state if that employer knowingly or intentionally hires an unauthorized worker. The statute also mandates the use of the E-Verify electronic verification system to check on an employee’s work eligibility. The Court’s decision in Chamber Of Commerce v. Whiting upholding this statute opens the door for other states to enact laws that similarly impose stricter penalties on employers for immigration law violations. To learn more about the decision, please continue reading at Littler's D.C. Employment Law Update blog.

Photo credit: MBPhoto, Inc.

Legislative Push for Immigration Reform Continues in Arizona

Arizona State CapitolArizona legislators continue to press forward with immigration-related proposals. State Senate President Russell Pearce, sponsor of the infamous SB 1070, recently introduced SB 1611 (pdf), a wide-ranging immigration enforcement bill. On February 22, 2011, the State Senate Appropriations Committee approved the bill by a 7-6 vote, with two committee Republicans voting against the bill, according to Courthouse News Service.

Of interest to employers is Section 9 of SB 1611, which would amend Arizona’s E-Verify statute. Since December 31, 2007, Arizona employers have been required to use E-Verify to authenticate new hires’ legal work status (Ariz. Rev. Stat § 23-214). SB 1611 amends that statute to permit business license suspension for failure to provide proof that the entity is registered with, and participating in, the E-Verify program. If the state attorney general discovers noncompliance, notice will be issued to the business, which will have six months to comply. If, after six months, the business remains noncompliant, the attorney general can petition a state court to order the appropriate agencies to suspend all licenses held by the business. The suspension will remain in effect until the business complies.

The bill’s other enforcement provisions include:

  • making it a crime (punishable by a 30-day minimum jail sentence) to drive a motor vehicle while in the country illegally;
  • requiring schools to collect information on students’ legal status and to report to law enforcement if families do not provide the necessary documents or if the documents appear false; and
  • requiring public agencies to verify renters’ immigration status and to evict everyone living in a unit if any person living in that unit is found to be an illegal immigrant.

E-Verify Self Check Program to Launch on March 18, Allowing Individuals to Independently Verify Their Work Authorization Status

The Department of Homeland Security (DHS) has announced that, on March 18, 2011, it will launch the E-Verify Self Check Program, a secure web portal that allows an individual to verify his or her work authorization status. Previously, only employers could conduct E-Verify checks, and, in the event of a possible mismatch, the prospective employee needed to resolve the matter, thereby delaying his or her possible hire and/or start date. The Self Check Program will allow individuals to correct any identity information errors that the E-Verify system might contain, thereby “provid[ing] a vehicle for an individual to proactively check work authorization status prior to the employer conducting the E-Verify inquiry.”

The Self Check program is a two-stage process: Stage 1 requires users to verify their identities; Stage 2 examines whether the individual is legally authorized to work in the United States.
 

Stage 1: Identity Authentication

Self Check participants must first verify their identity, which is accomplished by answering between two and four “knowledge-based questions” built on information collected by third party Identity Proofing (IdP) services. The information, collected from financial institutions, public records, and other service providers, will include, e.g., the individual’s commercial transaction history, mortgage payments, or past addresses.

In the event insufficient identity verification sources exist, users cannot proceed to Stage 2. U.S. Citizenship and Immigration Services (USCIS) will receive notice that insufficient information exists, but no other information. Moreover, the agency will compile statistics on users’ inability to complete verification based on insufficient identity data.

If sufficient information exists but a user provides incorrect responses, he or she will “fail” and not advance to Stage 2. Again, USCIS will be alerted, but will not receive specific information relating to the failure, e.g., chosen responses. The information received will be used to generate statistics on failed attempts. Moreover, in the event of multiple attempts to authenticate an individual, the DHS contract authorizes the IdP to notify the information provider of potential fraud and to terminate access to E-Verify Self Check.

However, if sufficient information exists and the user provides correct responses, the user will “pass” and progress to Stage 2.

Stage 2: Confirmation of Work Authorization Status

In Stage 2, the user will be required to enter additional information based on documentation he or she would present to an employer during the Form I–9 process, which could include: citizenship status; Alien Number (if non-citizen); passport number; Form I– 94 number; and/or lawful permanent resident card or work authorization document (EAD) number. If the information provided matches information contained in federal databases (Social Security Administration, DHS, Department of State), ‘‘work authorization confirmed’’ will be displayed. However, if the information does not match, the screen will display “Possible mismatch with SSA/Immigration Information” and provide the user information on how to request correction of potential errors in database records.

Resolving Mismatches

If a mismatch occurs and the individual opts not to resolve it, E-Verify will close the case. However, if the user wants to resolve a Social Security mismatch, a form will be generated and detailed instructions provided on how to resolve the mismatch. For an immigration information mismatch, the program provides instructions on contacting E-Verify customer service to resolve the matter; contact must be made within 72 hours of the initial query. If the representative is unable to correct the record, the individual will be advised of further actions necessary to correct the error.

Establishing Work Authorization Without Identity Confirmation

If an individual is unable to authenticate through the IdP but wants to determine work authorization status prior to hire, USCIS will provide information on how to visit a Social Security Administration field office, access Social Security yearly statements, call USCIS, or submit a Freedom of Information Act/ Privacy Act request to access work authorization records. The individual will also be advised to check the information at the various credit bureaus and through a free credit check website.

Some Businesses Are Reluctant to Use E-Verify

The Fresno Bee reports that some employers, particularly within the agriculture industry, will not use E-Verify, the federal electronic employment verification system, to authenticate new hires’ legal work status. Relying on figures provided by the federal government, the paper states that “[o]ut of thousands of businesses in Fresno, for example, only 179 use the program… although those numbers don't account for businesses that contract with personnel companies using the program.” Businesses cite two main reasons for their non-participation in E-Verify: (1) administrative burden; and (2) a shortage of available legal workers.

Administrative Burden

Businesses unwilling to use E-Verify often point to the associated administrative burden. The Department of Homeland Security (DHS), which runs E-Verify, acknowledges that simply preparing to use E-Verify requires between a few days to several months, depending on a business’s size and processes. Human resources staff must devote time to enrolling in the program, and learning how to use it (via DHS manuals or online tutorials). Conducting the verification process and addressing issues that arise if E-Verify finds an individual ineligible to work requires time and resources.

However, the risks of noncompliance are significant. As previously reported here, the current administration’s approach to immigration enforcement centers upon employer audits. In April 2009, DHS issued a fact sheet, which revised its Worksite Enforcement Strategy to strengthen its focus on employer noncompliance. Two months later, 652 businesses received Notices of Inspections from Immigration and Customs Enforcement; at the end of the year, in December 2009, 1,000 faced audits, and the trend continues in 2010. From October 2009 to July 2010, businesses in Texas alone were fined over $600,000.

Also, although federal law makes E-Verify mandatory only for federal contractors, an increasing number of state and local governments have passed laws mandating the use of E-Verify. These laws typically apply only to public employers and contractors, but some states and municipalities require private employers to use E-Verify. In certain states and municipalities with proposed or actual immigration-related laws, use of E-Verify benefits employers because it provides a good faith defense to hiring violations.

The Legal Workforce

The lack of an available and willing legal workforce is another justification companies put forth for not using E-Verify. As an agricultural employer told The Fresno Bee, “[E-Verify] may work for Costco, but Costco doesn't have the problem I have,” i.e., a legal workforce shortage. The United Farm Workers of America, a large agricultural workers union, recently ran a campaign called “Take Our Jobs” that challenged individuals with legal U.S. work status to take illegal immigrants’ positions working in the fields. As noted by The Hill, only seven individuals accepted the challenge, the most notable being Stephen Colbert of Comedy Central’s “The Colbert Report,” who testified (in character) about his experience before the House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law.

Farmers interviewed by The Fresno Bee stated their preference for a legal workforce, and some pending bills aim for this result. In October 2010, Senator Saxby Chambliss introduced a bill (S. 3912) that aims to provide a non-amnesty option for temporary agricultural workers and streamline the H-2A temporary worker program. The Menendez-Leahy comprehensive immigration reform bill seeks, among other things, to address shortcomings in existing worker programs that have led to undocumented migration.

Employers or individuals wanting to learn more about E-Verify can read Littler’s Insight, A Basic Guide to E-Verify and Related Immigration Compliance: Everything Federal Contractors and Others Need to Know to Comply with E-Verify Requirements, this blog’s E-Verify entries, or visit the DHS E-Verify page.

New Jersey and Pennsylvania Consider Stricter Employment Verification Requirements

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

Pennsylvania

State Flag of PennsylvaniaHouse 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.

New Jersey

State Flag of New JerseyNew Jersey has also introduced two bills, Senate Bill 1842 and Assembly Bill 2600, which would prohibit the employment of unauthorized workers and require all employers who employ 100 or more employees to verify the employment eligibility of all new employees through E-Verify beginning January 1, 2011; compliance for smaller employers would begin on January 1, 2012.

In New Jersey, a rebuttable presumption that an employer did not intentionally or knowingly employ an unauthorized alien will exist if E-Verify was used for verification purposes. Violations can result in sanctions ranging from $100 to $1,000 and suspension and/or revocation of business licenses, depending on the severity of the offense. The New Jersey legislation, unlike the Pennsylvania bills, contains no retaliation provisions.

S1842 was introduced in May 2010 and referred to the Senate Labor Committee. A2600, also introduced in May 2010, was referred to the Assembly Labor Committee.

Employer Audits

The New Jersey and the Pennsylvania proposals also contain enforcement mechanisms. Under the proposed measures, the Pennsylvania and New Jersey labor departments would conduct employer audits and investigate complaint-based allegations to ensure employer compliance. Given the current climate surrounding immigration, it is not surprising that both states have included audits as an enforcement tool. As we previously discussed on this blog, the centerpiece of the Obama administration’s immigration enforcement strategy is the employer audit and, thus far, federal agencies have doled out considerable fines for non-complying employers.

USCIS Issues Guidance on Determining Hire Date for E-Verify Purposes

United States Citizenship and Immigration Services LogoEmployers using E-Verify to authenticate employees’ work authorization status are subject to the Three-Day Rule, which requires an employer to create an E-Verify case no later than three business days after an employee first works for pay (commonly referred to as the Hire Date). Confusion sometimes arises, however, because the Hire Date differs depending on whether the E-Verify case is created before or after the first day an employee works for pay. To clarify the matter, United States Citizenship and Immigration Services (USCIS) created a webpage explaining how to determine the Hire Date, and how to calculate the compliance deadline.

Employers can create an E-Verify case before the individual’s first day of work for pay if the individual has accepted an employment offer and has completed a Form I-9. The Hire Date is the date the E-Verify case is created.

Example: An employee accepts an employment offer and completes a Form I-9 on Thursday, but will not begin work until Monday. The employer creates an E-Verify case on Friday, the day after both conditions were met. Friday is the Hire Date.

Employers can also create an E-Verify case on or after the first day an employee works for pay. However, the employer must create a case no later than the third business day after the employee first works for pay.

Example: A business only operates Monday through Friday. An employee first works for pay on Monday, which is the Hire Date. For Three-Day Rule purposes, the first day is excluded from calculating the compliance deadline. Accordingly, Thursday is the third business day after the Hire Date, and the last day for an employer to create an E-Verify case.

Few Utah Businesses Have Complied with Mandatory E-Verify Enrollment

E-Verify LogoAccording to the Salt Lake Tribune, since the July 1, 2010, effective date of a Utah law requiring businesses with 15 or more employees to verify new hires’ work status through E-Verify, less than one-third have done so. The figure did not surprise Utah Governor Gary Herbert, who stated that even the law’s sponsor did not expect universal compliance. Some suggest that employers either do not know about the new requirement to use the federal electronic employment verification system, or are not hiring due to poor economic conditions, which could explain the low enrollment numbers.

Obama Administration's Immigration Enforcement Strategy: Audits

Binders and Magnifying GlassAudits, 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.

If an audit reveals that a business employs illegal workers, the employer must fire those employees or face criminal charges. For employers in migrant-driven industries, audits significantly and immediately deplete their workforces, making it difficult to conduct business. For dismissed employees, finding work in local or surrounding areas is difficult because potential employers fear being audited themselves.

Though ICE officials contend the audits’ targets are egregious labor and immigration law violators, some contend that the agency is missing its mark by going after employee-friendly businesses. Others, however, contend that the agency’s efforts are insufficient because employees found to be illegal immigrants are being fired instead of being arrested and deported.

Massachusetts Senate Approves Budget Amendment Containing Immigration-Related Prohibitions

The New York Times reports that the Massachusetts Senate has voted 28 to 10 in favor of an immigration-related amendment (pdf) to the state budget bill that would require state contractors to verify that their workers are legally authorized to live and work in the United States. The proposed law also would penalize contractors violating the law by prohibiting them from doing business with the state. Additionally, the state attorney general’s office would be required to set up a hotline by which people could anonymously report alleged hiring of illegal immigrants, and to investigate such allegations.

What Arizona's Controversial Immigration Law Means for Employers

State Flag of ArizonaWith many in the nation watching, Arizona Governor Jan Brewer signed the "Support Our Law Enforcement and Safe Neighborhoods Act" ("SB 1070") into law. The legislation represents Arizona's latest effort to combat illegal immigration and is now the centerpiece of a national political firestorm, including criticism from President Obama and numerous public interest groups. In addition, SB 1070 already is the subject of two federal lawsuits challenging its constitutionality. Lost among this debate, however, are those provisions of the law directed toward Arizona employers. To learn more about the law and its implications for employers, please continue reading Littler's ASAP What Arizona's Controversial Immigration Law Means for Employers by Neil M. Alexander and Michael J. Lehet.

United Kingdom: Identity Cards for Skilled Migrant Workers Now Available

As this blog previously noted, as of January 6, 2010, the UK Border Agency (UKBA) has started issuing identity cards to skilled foreign workers and their dependents. The identity card confirms the holder's identity, nationality, and immigration status in the UK, and also indicates whether the holder is authorized to work or study under the country’s points-based immigration system.

In November 2008, the UKBA started issuing identity cards to various non-European foreign nationals living in the UK, and in December 2009 it introduced voluntary identification cards for British, European Economic Area and Swiss nationals.

UAE: Transition to Single Application for Visas, Labor and Identification Cards

Gulfnews.com reports that a single application form for United Arab Emirates residence visas, labor cards and identification cards will be available later this year. Instead of providing the same biographical data (e.g., name, nationality, marital status) on three separate applications, petitioners will complete one application and the information supplied will be used to process all three official documents. Approved applicants will then be issued an all-purpose identification card.

During the fourth quarter of 2010, residence visa information will be transferred to the identification card, and the transfer of labor card information will follow next. Upon complete incorporation, individuals will be able to present identification cards to enter the UAE and to verify their work authorization, thereby supplanting separate visa stamps and labor cards.

The City of Lancaster, California Will Require Businesses to Use E-Verify

Businesses in the southern California city of Lancaster will be required to use E-Verify to confirm new hires’ eligibility to legally work in the United States, according to the Los Angeles Times. Companies that fail to comply with the requirement could face revocation of their business license. At least 11,000 California business are already enrolled in the E-Verify program, which processed over 8.5 million queries in fiscal year 2009.

E-Verify Usage Continues to Increase

A recent USCIS study reports that American businesses authenticate 1 in 4 new hires’ work status using E-Verify. According to a Homeland Security Insight & Analysis article, in 2009 there have been about 6 million E-Verify queries, a considerable increase from previous years. E-Verify boasts a 96.9% accuracy rate, and the program is frequently analyzed and updated. Substantial improvements are scheduled to occur in August 2009.

Although E-Verify has been praised by many in the business community, caution over mandating usage among all employers, particularly smaller employers, has been expressed. Others, however, believe that the system represents an efficient and effective way to curb illegal immigration, and are hoping that Congress increases funding and expands the program.


 

European Union: Member States Adopt "Blue Card" Immigration Program

The European Union has formally adopted a work authorization program intended to attract highly skilled foreign workers and modeled after the United States’ Green Card program. The “Blue Card” will allow immigrants to work in any EU member state (except Great Britain, Ireland and Denmark) and will entitle card holders to limited social and welfare rights, for a renewable period of one to four years, EUobserver.com reported. Blue Card holders will receive equal treatment with nationals as to working conditions, including pay and dismissal, and will have some ability to move between EU member states. The program also includes penalties for employers who hire illegal immigrants.

Russia: Foreign Workers Face Increasing Difficulties in Obtaining and Renewing Authorization Documents

As reported by The Moscow News Weekly, over the past several months it has become more difficult for companies to hire and retain foreign employees in Russia. A major issue cited by various foreign business associations is that the enforcement of migration rules can be unpredictable. For example, the Federal Migration Service has become stricter in enforcing certain rules: Two years ago, diplomas attesting to the applicant's educational qualifications were required only for language teachers, but since October 2008, the rule is being enforced for all professions.

There also are concerns about the quota system for work permits and the bureaucratic obstacles that employers sometimes encounter with the system. One possible solution is to give certain white-collar employees from the European Union, the United States and Japan "green cards" that would exempt card holders from the quota system. The Federal Migration Service has drafted a bill along these lines that may be introduced in the Duma in July.

Another reason for the difficulties is the procedure by which representative offices hire foreign workers. A representative office is issued a permit by an accrediting body (such as the Chamber of Commerce and Industry or the State Registration Chamber) which states how many foreign employees the representative office may hire. Under this arrangement, foreign employees working for the representative office do not receive work permits, but rather an accreditation card from the accrediting body. Recently there have been reports of police officers questioning the validity of these accreditation cards during their routine document checks in the streets. The Japan Business Club and the Association of European Businesses have been advising their members to obtain work permits for accredited foreign employees working in representative offices.

Effective Date of Federal Contractor E-Verify Regulation Pushed Back to May 2009

The effective date of the E-Verify federal contractor regulation has been pushed back yet again – it has now been delayed until May 21, 2009. (See our previous blog post for more information about the original compliance deadline). The E-Verify federal contractor rule requires certain federal contractors to use E-Verify to check the work authorization of employees assigned to federal contracts, as well as new hires. Continue reading Littler's ASAP, Effective Date of Federal Contractor E-Verify Regulation Pushed Back to May 2009, by Jorge Lopez, Joshua Roffman and Lisa Cottle.