Preparing for immigration reform now

On Thursday, May 25, 2006, in a historic vote, the United States Senate passed the most important immigration reform law in 20 years. This comprehensive immigration reform bill addresses 3 tough issues: 1) securing our borders; 2) creating a temporary guest worker program to address the labor shortage; 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 passed last December. The House bill only addresses the first issue: “securing our borders.” It is “app only”. The rationale is that we must first reassert control over our borders. He proposes to build a 700-mile fence along the Mexican border, adding 6,000 new border patrol agents, and makes “unlawful presence in the United States” a felony. It also calls for more “inside enforcement” that is cracking down on employers, who employ undocumented workers. It 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 stricter enforcement in the workplace, doubling the penalties for employers from $ 10,000 to $ 20,000.

The Bush Administration has proposed two new reforms to ensure that employers are hiring workers authorized to work in the United States. First, they have proposed allowing employers to keep I-9 employment authorization forms electronically in digitized form. This would save space and also help to 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 regulations will establish safe harbor procedures for employers. However, they will also target employers for enforcement proceedings if they repeatedly receive the discrepancy letters. Hopefully the immigration reform is approved this year and they will be able to legalize those workers whose documents are not adequate. However, if a new law creating a temporary worker is not passed, employers must be prepared to deal with the expected increase in workplace enforcement.

Regardless of what the final immigration reform bill looks like or even if no bill passes, one thing is for sure: There will be increased enforcement of penalties on employers. Just as the IRS made all employers deputy tax collectors, Immigration is making employers deputy immigration inspectors by requiring them to complete the I-9 form for all employees and now also requiring them to verify the accuracy of your 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 the social security numbers of their employees. The application of sanctions to employers 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. However, one thing is for sure: there will be more enforcement in the workplace, 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 the responsibility of all employers to conduct a “preventive internal I-9 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 employee documents and are authorized to work in the U.S. This is required for all employees, including Native American citizens. Additionally, if an employee’s work authorization expires, the employer must complete a new I-9 form with the updated information. Failure to do so may subject the employer to civil and criminal penalties.

For more information on conducting 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