With the recent passage of the Healthcare Reform Bill by the House of Representatives on March 21, 2010, it appears as if Immigration reform will be in the forefront of the national discussion and debate in 2010. On March 19, 2010, Senators Charles Schumer and (D-NY) and Lindsey Graham(R-SC) presented their blueprint for bipartisan immigration reform legislation in an editorial in the Washington Post. President Obama has lauded the bipartisan efforts and that indicated that a comprehensive Immigration Reform would be next on the agenda. The Outline for the Senators’ proposal rests on 4 Pillars: 1.) Ending illegal employment through biometric Social security cards; 2.) Enhancing border and interior enforcement; 3) Managing the flow of future immigration to correspond to economic realities, including a system for admitting lower skilled workers; and 4) Creating a tough but fair path toward legalization for the 11 million people currently in the US without authorization. Undoubtedly there will much discussion and debate over each of these areas as we work towards the reform needed to update our immigration policies to fit our current economic and social realities. One clear focus of the current immigration policy and sure to be part of any future legislation is the quantity of undocumented workers living and working in the U.S. today.
Worksite Enforcement: Inspections On The Rise And The Importance Of Due Diligence With I-9’s
In an effort to address the growing undocumented work force, there has been a marked increase in the number of worksite enforcement actions nationwide over the past 5 years. Under the Obama Administration, the new strategy in the fight against illegal immigration has been to crack down on employers who knowingly employ illegal workers. Janet Napolitano, the US Secretary of Homeland Security has stated that the Department of Homeland Security (DHS) is prioritizing public safety while targeting criminal aliens and aggressively pursuing employers that knowingly take advantage of illegal labor. Within DHS, the Immigration and Customs Enforcement Division (ICE) is the federal agency responsible for investigating employers for immigration worksite violations. ICE has made it clear that Employers are being held to a higher standard of knowledge and cannot choose to look the other way without serious consequences. Companies that employ workers in the U.S. need to take the steps to ensure their employment authorization procedures are in order.
In April of 2009, John Morton, Department of Homeland Security Assistant Secretary for ICE issued a press release stating that I-9 Inspections were the most powerful tool that ICE had in combating illegal immigration, and that ICE intended to utilize Notice of Inspections (NOIs) to focus its resources on the auditing and investigation of employers suspected of knowingly hiring illegal workers. Since that first press release, ICE has been moving forward at full speed and has issued over 1800 Notice of Inspections to Employers throughout the U.S in the last 8 months. In all of FY2008, ICE issued only 503 similar notices.
ICE is using its power of Inspection to hold employers accountable for their hiring practices by pursuing both civil fines and criminal prosecutions. Of the original 652 NOI’s issued in April of 2009, ICE has filed formal notices to seek a fine from 61 of 652. ICE officials said they were considering seeking fines from an additional 267 companies from that first audit.
Before 1986, Employers were not obligated to verify the employment eligibility of its workers. Immigration authorities were responsible for finding undocumented workers through raids. The focus in workplace action was on the worker. Then in 1986 the Immigration Reform Control Act (IRCA ) was passed and encapsulated the notion that the primary reason for illegal entry was employment, and therefore the imposition of penalties on Employers who hire illegal workers’ would deter such hiring. IRCA granted amnesty to those illegal’s here at the time and implemented the Form I-9 Employment Verification Form and the requirement that every Employer must complete a Form I-9 for each person hired, regardless of their citizenship status. At the same time, IRCA added provisions to keep Employers from discriminating on the basis of national origin or citizenship in the hiring and firing of workers.
While all agree that there needs to be a way to verify the employment authorization of workers in the U.S., over the past 24 years since its adoption, there have been many discussions of the efficacy and burden of the Form I-9. Concerns have risen regarding discrimination against non-citizens. Additionally, Employers have raised concerns about tiptoeing the line between verifying the authenticity of the documents presented and being accused of discrimination. With the increase in identity theft and document fraud, even the most diligent Employers find it difficult to truly verify the work authorization of its workforce.
In the current employer focused enforcement environment, it is more important than ever that Employers pay close attention to the laws regulating I-9’s and the employment verification of workers and take all steps necessary to ensure full compliance with such laws. Employers should seriously consider the pros and cons of implementing such government programs as E-Verify (USCIS Electronic Employment Verification Program ) and IMAGE (voluntary program run by ICE which stands for ICE Mutual Agreement between Government and Employers ) discussed in detail in a previous article in the July/August issue of Immigrant Magazine, or at the very least should retain an attorney to do an attorney-client privileged analysis and report of the company’s current compliance results. Such analysis can also cover any potential civil and criminal liabilities and any legal steps to mitigate such liabilities.
Disclaimer: Nothing on these pages should be taken as legal advise for any individual case or certain situation. The information is general and should not be relied on upon for any specific situation. For legal advice, please contact one of our attorneys at www.usworkvisa.com
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