On Thursday, May 25, 2006, in a historic vote, the United States Senate passed the most significant immigration reform bill in 20 years. This comprehensive immigration reform bill addresses 3 tough issues: 1) secure our borders; 2) create a temporary guest worker program to address labor shortages; and 3) what to do with the approximately 12 million undocumented immigrants in the country.
The bill now goes to the House/Senate conference committee where it must be reconciled with the House bill that was passed last December. The House bill only addresses the first issue: “securing our borders.” It’s “compliance only”. The logic behind this is that we first need to reassert control over our borders. He proposes to build a 700-mile fence along the border with Mexico, adding 6,000 new border patrol agents, and converts “unlawful presence in the U.S.” in a serious crime. It also calls for more “internal enforcement” that is cracking down on employers who employ undocumented workers. Increases the maximum fine for knowingly employing an undocumented worker from $10,000 to $40,000 and includes criminal penalties for repeat offenders. The Senate version also calls for tougher workplace enforcement, doubling employer penalties from $10,000 to $20,000.
The Bush Administration has proposed two new reforms to ensure that employers hire authorized workers to work in the U.S. First, they have proposed allowing employers to keep I-9 employment authorization forms electronically in the form of digitized. This would save space and also help find them. Second, they have proposed new procedures for employers to establish their duties and responsibilities when they receive “Social Security mismatch” letters stating that their employees’ Social Security numbers and names do not match their account. The regulation will establish safe harbor procedures for employers. However, employers will also be approached for enforcement proceedings if they repeatedly receive discrepancy letters. Hopefully the immigration reform will be approved this year and those workers whose documents are not adequate can be legalized. However, if a new law creating a temporary worker is not passed, employers must be prepared to deal with the increased workplace enforcement that is expected.
Regardless of what the final immigration reform bill looks like or even if no bill passes, one thing is certain: There will be increased enforcement of employer sanctions. Just as the IRS turned all employers into deputy tax collectors, Immigration is turning employers into deputy immigration inspectors, requiring them to complete Form I-9s for all employees and also requiring them to verify the accuracy of employees’ social security numbers when they receive “mismatch letters” from the Social Security Administration. The immigration reform bill has proposed the creation of an electronic database for employers to verify their employees’ social security numbers. Employer sanctioning has already increased and will increase substantially.
At this time, it is unclear what the final immigration reform bill will look like or if it will pass this year. One thing is certain, however: There will be more workplace compliance, with or without a new law. Right now, due to all the political pressure, Immigration has already begun to enforce existing laws more vigorously. Therefore, it is incumbent upon all employers to conduct a “preemptive I-9 internal audit” now, before they are audited by the government. Employers are required by law to complete a Form I-9, Employment Verification Form, for all of their employees at the time of hire, certifying that they have reviewed the employee’s documents and that they are authorized to work in the US. This is required for all employees, including native-born US citizens. Also, if an employee’s work authorization expires, the employer must complete a new Form I-9 with updated information. Otherwise, the employer may be subject to civil and criminal penalties.
For more information on how to conduct a preventive internal I-9 compliance audit, contact Eli M. Kantor at (310) 274-8216; [email protected] or [email protected]; or visit our website at www.beverlyhillsimmigrationlaw.com or our blog at http://www.beverlyhillsimmigrationlaw.blogspot.com
