Beware of the Push for New Employment Verification Systems

Andrew M. Wilson Esq.
July 27, 2006 — 2,238 views  
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The passionate debates surrounding immigration reform have receded from metropolitan marches back into Capital Hill offices.  While most issues are seen as too polarizing to aggressively address, one relatively innocuous area has survived and actually gained tremendous momentum—Employment Verification Systems.

Congress and the Department of Homeland Security are making concerted efforts to ensure that U.S. employers are properly hiring legal workers.  Robert Divine, Acting Deputy Director of USCIS, testified before the Subcommittee on Workforce, Empowerment and Government Programs that it is the government’s goal to improve worksite enforcement as part of comprehensive immigration reform.

It is clear the government wants to address the practice of hiring illegal workers and overhaul current employment verification and employer sanction programs.  Proposed changes, however, have the potential to unfairly transfer to employers a larger portion of responsibility and blame for the presence of illegal workers in the U.S.  The government is looking to mete out punishment for illegal workers and employers may be the easiest target.  Reading between the lines, one can speculate that increased enforcement and penalties against employers will play a large role in any new verification system.

House and Senate Bills Addressing New Employment Verification System

Both the House of Representatives and the Senate have proposed bills promulgating revised employment verification systems—H.R. 4437 out of the House and S. 2611 out of the Senate.  Each proposed bill/legislation is based on the current Basic Pilot system, and each would implement an electronic employment verification system.  (Currently about 10,000 employers use the Basic Pilot system.)

While each bill pushes an electronic employment verification system, each would still require the employer to attest to the new hire’s employment and identification documents to ensure authenticity.  They would also require employers to record the verification code received through the electronic verification process on a paper-based I-9 form.

As SHRM member and advocate Geri Simmons, Human Resources Manager, for ConAgra Foods, pointed out in her testimony before the Subcommittee on Employer-Employee Relations, this will significantly increase the amount of staff time and resources that an employer must spend on the verification process.

There is also a concern with each bill about the accuracy and timing of the verification process, and how that may place U.S. employers in a difficult situation.  Under the current Basic Pilot program, employers are provided a response within three (3) days and potentially ten (10) days for a second attempt verification.  While H.R. 4437’s response time frames would mirror those under the current system,  S. 2611 would extend the initial response to 10 days and the second attempt verification to as long as 30 days. This delay could place employers in the predicament of not wanting to employ an illegal worker, but not know if they are for up to 30 days.  Not only should this make an employer uncomfortable, but it creates administrative and cost concerns surrounding training, health care coverage and other resources assigned to a worker who is later deemed unauthorized.

In addition, under new proposed legislation, employers will be burdened with new requirements for their subcontractor’s hiring practices.  Employers will not only be responsible for their own employees, but may also bear the burden of making sure their subcontractor’s employees are legal and authorized.  Under H.R. 4437, a penalty will only be imposed if the employer (contractor) knew that the subcontractor hired or continued to employ an individual in violation of the law.  Under S. 2611, however, an employer must attest in its contract with the subcontractor that the employer is not using a subcontractor to “knowingly or in reckless disregard” hire unauthorized workers.  Even more troubling, under S. 2611, there will be a data collection and reporting responsibility placed on the employer (contractor) to collect information from subcontractors and basically police their adherence to the law.

Increased Civil and Criminal Penalties

What happens if an employer misunderstands or misapplies the law?  Both the House and Senate bill propose to increase civil and criminal penalties for hiring illegal workers.  H.R. 4437’s civil penalties for hiring or continuing to employ an unauthorized worker are set at $5,000 to $7,500.  Repeat violators may be subject to a fine of $10,000 to $15,000.  Repeat violators over a two year period that failed to comply with a previously issued order may be fined between $25,000 and $40,000.  H.R. 4437’s civil penalties for recordkeeping or verification practices are set at $1,000 to $25,000.

S. 2611’s proposed civil penalties for hiring or continuing to employ an unauthorized worker are set at $500 to $4,000.  Repeat violators over a 12 month period may be subject to a fine of $4,000 to $10,000.  Repeat violators over a two year period that failed to comply with a previously issued order may be fined between $6,000 and $20,000.  Civil penalties for recordkeeping or verification practices are set at $200 to $2,000.  Repeat violators over a one year period may be subject to a fine of $400 to $4,000.  Repeat violators over a two year period that failed to comply with a previously issued order may be fined $6,000.

New IMAGE Program

In addition to proposed legislation, the Department of Homeland Security (DHS) is also making increased efforts to ensure employers only hire authorized workers. The DHS announced on July 26, 2006 an initiative and best business practices to help employers ensure that they are building legal workforces through voluntary partnerships with the U.S. government.  The "ICE Mutual Agreement between Government and Employers (IMAGE)" is intended to build cooperative government-business relationships to strengthen hiring practices and reduce unlawful employment of foreign workers.  The initiative also seeks to effect greater industry compliance and corporate due diligence through enhanced federal training and education of employers, DHS said.

The DHS said IMAGE has been designed to provide answers to the flood of questions the agency has received from employers seeking information on how to avoid hiring unauthorized workers.  "[P]rosecutions are only part of the solution," said DHS Secretary Michael Chertoff.  "If the government is going to fully address the problem of illegal alien employment, it must partner with employers, educate them and provide them with the tools they need to develop a stable, legal workforce."

Companies that join the program and comply with the terms of IMAGE will become "IMAGE certified," a distinction that U.S. Immigration and Customs Enforcement (ICE), a DHS agency, believes will become an industry standard.  Under the program, ICE will partner with companies representing a broad cross-section of industries.  The companies will serve as "charter members" of IMAGE and will be liaisons to the larger business community, DHS said.

As part of the program, businesses must adhere to a series of best practices, including the use of the Basic Pilot employment verification program administered by U.S. Citizenship and Immigration Services.  ICE will provide training and education to IMAGE partners on proper hiring procedures, fraudulent document detection, and antidiscrimination laws.  ICE will share data with employers on the latest schemes used to circumvent legal hiring processes.  The agency also will review the hiring and employment practices of IMAGE partners and will work collaboratively with them to correct "isolated, minor compliance issues."

As a first step, companies must agree to an audit of their Employment Eligibility Verification (I-9) forms, and must use the Basic Pilot program when hiring employees.  To become IMAGE-certified, partners also must adhere to best practices, including the creation of internal training programs for completing I-9s and detecting fraudulent documents.  IMAGE partners must arrange for audits by "neutral parties" and must establish protocols for responding to Social Security no-match letters.  ICE also is asking employers to establish a tip line for employees to report violations and mechanisms to self-report violations to ICE.  A full list of best practices is available at http://www.ice.gov/partners/employers/worksite/besthire.htm.

New Proposed Procedures are Cause for Concern

A revised employment verification system is a non-controversial movement that is easy for the government to sell, but perhaps far less easy to implement.  HR professionals should be concerned that they will pay for the faults of a poorly designed and implemented system.  While SHRM supports the concept of a reliable employment verification system, as Gerri Simmons pointed out in her testimony, there is anxiety over the practicality and feasibility of supposed improvements.

Given the increased raids on employers by Immigration and Customs Enforcement (ICE) and the view that employers should pay a penalty for being complicit in the illegal worker problem, HR professionals will need to be even more diligent with their internal hiring and documentation procedures.  We will see whether employers and HR professionals are forced to pay the price, literally, for a potentially inefficient and impractical verification system.

Andrew M. Wilson is a partner in the immigration law firm of Serotte Reich Wilson, LLP (www.srwlawyers.com).  He graduated from Ridley College in St. Catharines, Ontario, received his B.A. degree from the University of New Hampshire and his J.D. degree from the State University of New York at Buffalo School of Law.  He authored “TNs for Computer Professionals Under NAFTA” for the American Immigration Lawyers Association’s (AILA) Immigration Practice & Procedure Under The North American Free Trade Agreement, 2nd Edition and “TNs for Non-Degreed Professionals” for the American Immigration Lawyers Association’s (AILA) Immigration Practice & Procedure Under The North American Free Trade Agreement, 3rd Edition.  In addition, Mr. Wilson authored “Living In America: A Canadian’s Guide To Understanding U.S. Immigration Law” for CCH Canadian Limited’s Cross-Border Relocation Law.  He has also authored articles for Computerworld and International HR Journal, and been interviewed by CBS MarketWatch on the subject of H-1B legislation.  In addition, Mr. Wilson is a frequent speaker on various immigration issues at AILA and Society of Human Resource Managers (SHRM) conferences and he serves as an Immigration Board Guide on Martindale-Hubbell’s lawyers.com web site.  Mr. Wilson is a member of the New York State Bar, Erie County Bar, AILA, SHRM, the American Chamber of Commerce in Canada and he is listed in the Best Lawyers Consumer Guide for immigration law.

Andrew M. Wilson Esq.