Employers Brace for Immigration Crackdown
September 10, 2007
by Employment & Labor Law / Employee Benefits Group
Stinson Morrison Hecker LLP
Copyright © 2007
The federal government is poised to roll-out an array of new immigration enforcement initiatives in the coming months – including expanded criminal investigations, increased civil fines, and new regulations – as part of its stepped-up efforts to target employers who hire illegal immigrants.
Expanded Criminal Investigations – The Department of Homeland Security (DHS) on August 10, 2007 announced that it will continue to expand criminal investigations against employers who knowingly hire large number of illegal immigrants. Arrests by DHS’ Immigration and Customs Enforcement (ICE) agency have increased from 24 in 1999 to a record 716 in fiscal year 2006. There have been 742 criminal arrests in fiscal year 2007 (through July 31).
Increased Civil Fines – As a counterpart to DHS’ strategy of using criminal investigations to deter illegal employment, DHS intends to increase the civil fines imposed on employers who knowingly hire illegal immigrants by approximately 25 percent.
SSA to Mail 138,000 No-Match Letters – The Social Security Administration (SSA) is planning to mail over 138,000 no-match letters to employers beginning this Fall – about 15,000 a week over an 8 to 10 week period – advising them that the Social Security Number being used by one or more of their employees do not match the SSA’s records. The letter requests the employer to check its records and to contact its employees to resolve the discrepancies. For the first-time ever, the SSA’s no-match letters will be accompanied by a two-page letter from DHS / ICE that will provide employers with "guidance" on how to respond to the SSA no-match letter. However, a federal judge on August 31, 2007 temporarily barred the government from issuing the DHS / ICE guidance letter with the SSA “no-match” letters while she considers a lawsuit filed by the AFL-CIO challenging the initiative. A hearing has been set for October 1, 2007.
Responding to No-Match Letters – DHS on August 15, 2007 issued new "Safe-Harbor Procedures for Employers who Receive a No-Match Letter." Under the new, final rule , employers who fail to take certain steps to verify the employment eligibility of an employee (within 93 days from receipt of the a no-match letter) “must choose between taking action to terminate the employee or facing the risk” that DHS may find that the employer had "constructive knowledge that an employee was an unauthorized alien and therefore, by continuing to employ the alien, violated the Immigration and Nationality Act." As part of the court order temporarily barring the DHS guidance letters from being included with SSA no-match letters, a federal judge on August 31, 2007 also temporarily enjoined DHS from implementing its final safe-harbor procedures while she considers the lawsuit filed by the AFL-CIO challenging the new rules. A hearing on both issues has been set for October 1, 2007.
Reduction of I-9 Form Documents – In the coming months, DHS is expected to publish a final rule that will reduce the number of documents that employers must accept to confirm the identity and work eligibility of employees. “The new rule is intended to reduce unlawful employment by weeding out insecure documents now used often for identity fraud.”
Federal Contractors – DHS also has announced a rulemaking process that would require new federal contractors and vendors to enroll in E-Verify (formerly known as Basic Pilot), the agency’s electronic eligibility verification program. The new rule would require that federal contractors who receive new federal contracts use the E-Verify system to check the employment eligibility of the contractors that would work on those contracts. As there are more than 200,000 companies doing Federal business, this will significantly expand use of E-Verify and, according to DHS, make it more difficult for illegal immigrants to obtain jobs through fraud. A number of business groups have urged Senators not to attach such a requirement to appropriation bills now pending in Congress.
Photo Screening Capability – The DHS’ E-Verify system now has an enhanced photographic capability that will allow employers to check the photograph on some of the documents (green card, employment authorization documents) which are presented in the I-9 process against the original of the document in the database. According to DHS, this capability , which will soon be expanded across the E-Verify system, “will allow employers to determine if the person has phonied up the document or substituted a phony photograph for a real photograph.” In addition, DHS intends to ask states to voluntarily share their Department of Motor Vehicle photos and records with E-Verify.
Bottom Line – DHS remains committed to increased immigration enforcement, including a crackdown on employers who knowingly hire large numbers of illegal immigrants. While judicial review may delay some of the DHS’ new regulatory initiatives, it may not necessarily preclude them from ultimately going into effect.
Stinson Morrison Hecker LLP is one of the country's largest law firms with more than 360 attorneys in more than 45-industry-focused areas. If you would like more information regarding this summary, please contact one of our Employment & Labor Law and Employee Benefits attorneys.
Law at Work is designed to give general information and is not intended to be a comprehensive summary or to treat exhaustively the subjects and matters covered. The information appearing herein does not constitute legal advice or opinions. Such advice and opinions are provided only upon engagement with respect to specific factual situations. Nothing contained herein shall be considered as an admission in any matter or controversy.
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