Congress and the Administration are looking to make fundamental changes to U.S. immigration laws this year. The Administration has released an outline for proposed legislation, and a bipartisan group of eight Senators released a framework with many common overarching principles. In the U.S. House of Representatives, a bipartisan group of legislators is also working on proposed legislation, and the House Judiciary Committee has begun holding hearings addressing immigration reform. While draft language has yet to be released, and passage of any legislation is by no means certain, a general consensus looks to be developing that reform legislation is imperative and must include:
- Enhanced employee verification processes and penalties for hiring unlawful workers;
- Improvements to our legal immigration system;
- Legal status for individuals already in the U.S. without proper documentation, potentially including a conditional pathway to citizenship; and
- Additional efforts to secure the border.
Employers understand all too well the challenges in complying with current rules related to work visas and verification of employees for eligibility to work in the U.S. New laws potentially granting work status to millions of newly-eligible employees and mandating verification of all employees through an electronic verification system will have a significant affect on all businesses.
Most significant right now for employers is the fact that many elements of reform are already being implemented either through administrative action or at the state and local level:
Deferred Action for Childhood Arrivals (DACA) – An estimated population of up to 1.7 million currently undocumented individuals may legally remain and work in the U.S. under the Administration’s deferred action program. Many of these individuals are already employed and may have provided false information during the hiring process.
- How do employers hire or retain DACA eligible employees?
- Can employers discipline employees who provided false information at hire?
- How should employers re-verify DACA employees already verified?
- Enhanced Enforcement and Audits of Forms I-9 and Employment Records – In 2012, Immigration and Customs Enforcement (ICE) audited records of more than 3,000 employers and issued approximately $13 million in civil fines. The Administration has signaled no let up in enforcement. Employers should identify and correct I-9 related problems now, or be prepared to face civil fines and mass dislocation of workers.
- Mandatory E-Verify for Federal Contractors and in States – Since September 2009, all federal contractors have been required to use E-Verify, the government’s web-based system, to verify work authorization of employees. In addition, 23 states have implemented some level of mandatory E-Verify requirement either at the state or local level. Many businesses operating within these states are unaware of these requirements, yet they could be subject to fines or loss of their business operating license. Employers need to ensure they are complying with mandatory E-Verify requirements.
- Enhanced Enforcement of Immigration-Related Anti-discrimination Provisions – The U.S. Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), investigates and prosecutes allegations of immigration discrimination in hiring, firing and recruitment, as well as unfair practices during the employment eligibility verification process. Over the past 12 months, OSC has initiated numerous investigations and companies have had to award back pay, rehire employees, and pay civil fines for terminating, over-documenting, or wrongly requiring specific documentation as part of the employee verification process. Human resources managers and supervisors need clear guidance to avoid unintended document abuse and discrimination during the employment verification process.