Immigration Reform Targets Employers and Worksite Enforcement
Currently Congress is debating various resolutions to address the unauthorized migrant population. While the immigration debate continues, one constant is the push for increased enforcement. Various proposed bills and amendments address the unlawful employment of unauthorized migrants and worksite enforcement. These proposals include making electronic employment verification mandatory, requiring employer certifications similar to the Wal-Mart settlement agreement, increased requirements for document retention, increased fees for immigration violations, and more funding for worksite enforcement.
Electronic employment verification involves the use of an internet based system to verify the information provided to complete the Form I-9. All employees must complete Part 1 of Form I-9, by the date employment commences. Within three business days of commencing employment (or on the first day of employment if a job will last less than three days), the employee must present documents verifying their authorization to work. Proposed legislation would require employers to submit an electronic employment verification query within 3 days of hiring an employee. In addition, employers who violate the requirements regarding electronic employment verification may be subject to civil penalties.
Employers may also be required to make certain attestations regarding their compliance with immigration law per the legislative proposals. The Wal-Mart settlement agreement required the creation of an internal program to ensure compliance by Wal-Mart and its independent contractors. Wal-Mart and its vendors / independent contractors must make attestations regarding their compliance with immigration laws. The settlement also directs Wal-Mart to train all current and future store managers to prevent employing, hiring or recruiting illegal immigrants, and to comply with ongoing investigations of independent contractors previously used by the company. The legislative schemes mirror these requirements by requiring attestations from employers regarding their compliance with immigration laws and the creation of compliance programs.
Expanded document retention requirements for Form I-9s and increased penalties for violations are also included in the immigration reform framework. An example of the expanded document retention is the requirement for employers to retain Form I-9s for a longer period of time. Another requirement involves the maintenance of a record of any actions and any correspondence by the employer to clarify or resolve any issue that raises a "reasonable doubt" regarding the validity of the individual's identity and employment eligibility. For example, if an employer received a "no-match" letter from the Social Security Administration, which advised that the social security number provided by the employee did not match the employee's name, the employer would be required to maintain a record of the actions they took to resolve the no-match.
Finally, legislation which has been introduced includes a significant increase in the number of investigators responsible for enforcing laws prohibiting the employment of unauthorized migrants. Supplementing the investigators would be additional agents who will focus on detecting immigration fraud. Worksite enforcement will likely continue to focus on areas of national security and critical infrastructure sites as well as industries that either have a history of worksite violations or involve additional violations such as smuggling, harboring, document fraud, money laundering, and trafficking.
