It’s summertime and the immigration debate is heating up again.  On the heels of a recent Supreme Court decision upholding the mandatory E-Verify provision of Arizona’s Legal Arizona Workers Act (A.R.S. §§23-211 to 23-214) (LAWA) (see our recent client alert for details), two competing business oriented immigration bills were introduced in Congress this week. 

Shortly after the Court’s decision was published, House Judiciary Committee Chairman Lamar Smith announced that he would introduce a mandatory E-Verify bill. This bill, titled the "Legal Workers Act" (H.R. 2164), was rolled out this past Tuesday.  It would modify the voluntary E-Verify program by mandating a new Employment Eligibility Verification System (EEVS) nationwide. The largest employers would be required to use EEVS within six months from enactment while most employers would have to comply within two years. Agricultural employers would be given a three year reprieve from compliance after enactment. This bill would also make significant changes to the I-9 compliance and employer sanctions laws including a tenfold increase in some fines, criminalizing misuse of a social security number or other documentation, expanding the Social Security Administration’s enforcement duties, and providing safe harbor protections for employers from liability for unauthorized employment if actions were taken in good faith reliance on EEVS.

A second bill, introduced by Representative Zoe Lofgren who hails from Silicon Valley, California, would foster highly skilled immigration and entrepreneurial investment.  Entitled the Immigration Driving Entrepreneurship in America (IDEA) Act 2011(H.R. 2161), this bill would help U.S. companies attract and retain highly skilled foreign graduates from U.S. universities who studied in the “STEM” fields of science, technology, engineering and math by easing current restrictions to applicable nonimmigrant and immigrant visa categories.  The bill would also establish a new green card program for entrepreneurs who are able to secure venture capital funding or who establish a business that creates jobs for U.S. workers.  It would also free up  more green cards by exempting dependents and outstanding researchers and professors from the current quotas while eliminating employment-based per country limits and recapturing hundreds of thousands of green cards that went unused in prior fiscal years.  On the flip side, it would implement additional restrictions to the H-1B and L-1 visa categories by imposing new prevailing wage, attestation and recruitment requirements. 

What should employers do while Congress engages in the proverbial backyard squirt gun fight over immigration and employer sanctions policy?   If you do business as a federal contractor or in one of the states which mandates E-Verify such as Arizona, Utah, Mississippi, South Carolina (and soon to include Alabama and Georgia), then consult with counsel to determine if your organization should register in E-Verify.   Otherwise, get ready to weather the Summer “ICE” storms.  The Department of Homeland Security, Immigration Customs Enforcement (ICE) just announced that another 1000 companies will be audited for I-9 and immigration compliance.  Therefore, employers should ensure their “house in order.”  For more information on preparing for and responding to an ICE Notice of Inspection (NOI), see our March 3, 2011 post