1. Can you please review some of the legislation currently in place?
The basic federal immigration law is the Immigration Act of 1952, also known as the McCarran-Walter Act. So the basic structure of immigration law is over 50 years old and dates from the height of the Cold War. In 1986, the Immigration Reform and Control Act (IRCA) was passed. Under IRCA, for the first time, the "knowing" hire, employment, or referral for a fee of an unauthorized alien was prohibited. Few employers were investigated and fined under IRCA until the post 9-11 period. Really, it is only since the creation in 2003 of the Department of Homeland Security (DHS) and its enforcement arm, Immigration & Customs Enforcement (ICE), that serious enforcement of IRCA has become a reality. Since the WalMart case in 2005, it has become clear that worksite enforcement is a significant priority of DHS and ICE.
Violation of IRCA’s ban on hiring and employing unauthorized aliens may result in a civil fine for each unauthorized worker, UNLESS the hiring, employment or referral for a fee is part of a "pattern and practice" by the employer. "Pattern and practice" can be shown by even a small number violations, if they are in multiple locations of the same employer. In that case, it becomes a criminal violation. Hiring and continuing to employ 10 or more unauthorized aliens in a 12 month period with actual knowledge they are illegal and "for commercial gain" is a felony. And ICE builds cases for a number of other felony violations, as indicated below.
For example, other provisions of IRCA describe felonies punishable by up to 10 years (or more) in prison if done for "commercial advantage or private financial gain."
ICE has the resources, manpower and intelligence collection capacity to develop investigations based on “opportunistic” intelligence they may receive, such as, for example, from a disgruntled former employee. They can and do charge employers, including their owners, managers and HR personnel, for the following felony offenses:
Knowing, or in "reckless disregard " of the fact that a person is an alien who entered and remains illegally in the US,
The employer "transports or moves" that person; or
The employer "conceals, harbors or shields from detection" that person; or
The employer "encourages or induces" an alien to enter or reside unlawfully in the US; or
Attempts to commit any of these offenses; or
Conspires to commit any of these offenses; or
Aids and abets the commission of these offenses
If an employer hires or employs aliens "in reckless disregard" of the fact that they are not authorized, have they "encouraged or induced" them to reside unlawfully in the US? ICE has gotten convictions based on proving such facts. Why be a test case? ICE also charges employers with other felony offenses, including fraud, bank fraud, moneylaundering and RICO. You do not have to be in the illegal drug business to be charged with moneylaundering; a conviction can lead to $250,000 criminal fines, asset forfeitures, prison sentences and complete destruction of a company’s reputation and brand.
Smart employers in the contact industry, or in any industry with high employee turnover, protect themselves in several ways:
They have an unambiguous, consistently enforced, top down policy of immigration compliance, at every location;
They train annually on the key EMPLOYER DEFENSE available under current law: Proper, timely completion of Form I-9 (Employment Eligibility Verification) for every new hire, without exception.
They audit their I-9s and their I-9 and hiring practices every year and take swift action where they find non-compliance;
They check with immigration counsel BEFORE changing anything written on an I-9, to avoid a “document tampering” charge;
They have a clear, consistently enforced policy on responding to Social Security mismatch letters;
They consider carefully whether to enroll in the DHS/Social Security Administration program, E-Verify. One of E-Verify's major weaknesses has recently been addressed. The most common "tentative non-confirmation" of a social security number in the E-Verify system is on new hires who are naturalized US citizens. DHS has just announced that it has added US passport records to the E-Verify database. This should reduce the number of US citizens whose name and Social Security number kick out of the system as invalid, resulting in a lot of lost productivity while workers try to correct the database. It may also help avoid lawsuits for wrongful discharge, when a US citizen is terminated because E-Verify cannot confirm their social security number is valid.
If they are federal contractors, employers will be required to use E-Verify for new hires and existing employees who will work on the federal contract, beginning in May 2009; Many states already require this of state contractors;
They look VERY carefully at their contracts with service providers, especially those who deliver services on their premises. Contact industry companies may contract with staffing agencies to provide contract workers. These contracts must contain language to protect the employer against the staffing company's failure to comply with immigration laws.
They look at the states where they have employees, and find out if those states have passed their own immigration laws, as Colorado, Arizona, Mississippi, Georgia, and many others have done. (43 states in all). They make sure that they are not risking their business licenses under STATE immigration laws, by lax hiring practices.
2. What has been your experience with employers utilizing the employment verification form?
I spoke very recently with the HR Manager of a public company in the financial services industry. This is a sophisticated, experienced HR manager. She audited all 600+ of her company’s I-9 Employment Verification Forms, and found both substantive and technical violations in about 50% of them, such as: employees on the payroll with no I-9; I-9s that were not dated or signed by the employer (so it is not possible to tell whether they examined the new hire’s documents within 3 days of hire); I-9s that were not signed and dated by the employee; I-9s for employees with temporary work authorization, where the period of validity was expired or nearly expired; no system to kick out reminders about re-verifying such workers’ authorization. Ten years ago, this company could expect a small fine or misdemeanor charge if the government audited their I-9s. Today, if a DHS agent found errors to this extent upon review of the I-9s, an investigation would almost certainly result. Employers in all industries must be aware that the government has the right to review their I-9s with 72 hours notice. A new version of the Form I-9 is to go into effect on April 3, 2009. Between now and then, it would be a good idea for employers to conduct an internal audit of their I-9s, re-train their hiring personnel where needed, acquaint them with the new Form I-9, and get their house in order.
3. How widely adapted is this form?
In one version or another, Form I-9 has been around since 1991. All employers with more than 3 employees hired after Nov. 6, 1986 are required to complete the form for each new hire, within 3 business days of hire. The most recent version of the form was published on Dec. 17, 2008 and as mentioned above, goes into effect on April 3, 2009. It requires the employer to ensure that each new hire certifies to their personal information and their work status, either as a US citizen, a US legal resident, or an alien authorized to work for a temporary period. Secondly, it requires the employer to examine original documents establishing a person’s identity and work authorization, determine whether the documents “appear genuine and to relate to the person,” and to record on the I-9 what documents were examined and on what date. It also forbids accepting any expired document, such as a passport or driver’s license, and it reduces overall the number and type of documents that are acceptable for employment eligibility verification.
4. Please share with us a few strategies that companies can use to cut through the various roadblocks in order to insure that they are complying with federal immigration law? What are the special skills that allow foreign nationals to be eligible for a green card?
I have listed above (at #1) the strategies that smart employers use to ensure they are complying with federal immigration law, and so avoid exposure to liability, including criminal liability.
Concerning the special skills that allow foreign nationals to be eligible for a green card: Each fiscal year, the Immigration Act makes available a total of about 140,000 employment-based green cards for the entire world. These are divided into 5 employment-based visa classifications. No more than 5,000 are available for “unskilled” positions, defined as jobs requiring less than two years of training or experience beyond high school. So employers who need lower skilled workers cannot look to the employment-based immigration system for a supply of legal workers.
The other 135,000 green cards for workers are reserved for aliens who qualify as “multinational managers or executives”; or “outstanding researchers”; or aliens of extraordinary ability in the arts, science or business; aliens holding an advanced degree; aliens of exceptional ability in the arts or science; aliens in a profession requiring at least a bachelor’s degree or two years of training or experience; religious workers, including ordained ministers or priests; and alien investors of at least $1 million and whose investment creates at least 10 full time jobs for US workers.
About 120,000 of the total employment-based visas are actually issued each year. For many of the mentioned sub-categories, the annual quota is “spoken for” for many years into the future. Permanent visas (= green cards) are issued in the order that petitions are filed in, up to each year’s numeric limit or quota. This month, for example, a permanent visa is available under the quota for aliens in a profession requiring a bachelor’s degree if the employer filed the initial paperwork before May 1, 2005. People getting visas this month will have waited nearly four years.
Except for people born in China: they have a visa available in March 2009 if their employer started the process before Oct. 22, 2002. India-born applicants must wait even longer, because there are so many people already in line ahead of them. In March 2009, there is a visa available under the quota for India if the employer started the process before October 15, 2001. With regard to a green card for an unskilled worker, the wait is even longer.
People do wait many years for the right to live and work legally in the US based on an offer of employment. I have clients whose workers from India and China have waited 9 and 10 years to complete the process of employment-based immigration. For companies seeking workers on the lower end of the skill spectrum, the wait may be twice that long. You can see why many employers consider the US immigration system to be “broken” and in need of a fix. For most of the 12 million unauthorized workers now living, working, paying taxes and raising families in the US, there is no way for them to immigrate legally, in a practical sense.
In one version or another, Form I-9 has been around since 1991. All employers with more than 3 employees hired after Nov. 6, 1986 are required to complete the form for each new hire, within 3 business days of hire. The most recent version of the form was published on Dec. 17, 2008 and as mentioned above, goes into effect on April 3, 2009. It requires the employer to ensure that each new hire certifies to their personal information and their work status, either as a US citizen, a US legal resident, or an alien authorized to work for a temporary period. Secondly, it requires the employer to examine original documents establishing a person’s identity and work authorization, determine whether the documents “appear genuine and to relate to the person,” and to record on the I-9 what documents were examined and on what date. It also forbids accepting any expired document, such as a passport or driver’s license, and it reduces overall the number and type of documents that are acceptable for employment eligibility verification.