May 15, 2006

2006 Immigration Legislation: Déjà Vu --The Immigration Reform and Control Act of 1986

By Josie Gonzalez, Gonzalez & Harris (www.josiegonzalez.com)

This article was originally published in the Employers Group Newsletter (May 2006). Employers Group is a member of NAM, and is a human resources management association for California employers.

This article will examine the new, hotly debated legislation and compare it against IRCA, which provided legalization for undocumenteds and imposed penalties on employers who knowingly hire unauthorized workers. It will also explain how Immigration and Customs Enforcement’s (ICE) outreach at the worksite has already changed -- absent the passage of any new laws. Lastly, it will provide some pointers on how to ensure compliance.

Some things don’t change: The perception that the nation’s immigration woes are the fault of the business community and harsher penalties must be imposed on employers as a solution to the country’s immigration woes is the common denominator of the 1986 and now the 2006 legislation.

While thankful for the 1986 legalization provisions, many employers wondered if the trade-off – legalization for employer sanctions – was worth it. If the new legislation passes congressional muster in its current form, few employers will think that the new guest worker provisions are an acceptable trade for the enhanced civil and criminal penalties contained in both the current House (HR4437) and Senate (2454) bills. However, employer excitement over the possibility of legalizing one’s workforce and ignorance about the impact of the legislation has clouded the perception of many.

What are the major employer-related features of the 2006 proposed legislation?

• Mandated electronic new hire verification is phased in over five years starting with employers in critical infrastructure sites or sites related to homeland or national security and employers with prior violations.
• If an employer has 10 or more undocumented workers, there is a rebuttable presumption that the employer knew or had reason to know such aliens were unauthorized. The completion of an I-9 is a defense until participation in an electronic I-9 verification program is mandated.
• The standard for review of documents would change: concepts such as "taking all reasonable steps to verify eligibility for employment," and "totality of the circumstances" will now replace current protection if the documents examined "reasonably appeared genuine on their face."
• I-9s and copies of all documents must be maintained for seven years.
• Records of Social Security No-Match letters and steps taken to resolve each matter must be maintained.
• Criminal penalties for pattern and practice of knowing hire are increased to $20,000 for each violation and 6 months imprisonment.
• Civil fines for knowing hire are increased, ranging from $500 to $20,000.
• Civil fines for paperwork or electronic verification omissions start at $200 to $6000.
• Debarment from participating in government contracts if convicted of an offense or if there are repeat civil violations.

For the first ten years after the passage of IRCA, initial enforcement efforts focused on whether the employer completed a perfect I-9, and hefty fines were levied for minor imperfections regardless of the legal status of the workers. After former Congressman Sonny Bono sponsored a revision to the law, enacted in 1996, that required immigration inspectors to issue deficiency notices for I-9 irregularities with a ten day opportunity to cure the deficiency, enforcement plummeted. In fact, the Department of Homeland Security, almost ten years after the Bono provisions were enacted, still has not promulgated any regulations nor delivered on its promised revised I-9 form. Thus, over the last ten years we’ve witnessed a period of lessened enforcement except for the focus since 2001 on critical infrastructure employment sites, which generally net not the targeted terrorists but Mexican laborers.

However, enforcement strategies are changing. Whether this legislation with its harsh criminal provisions passes this year or in the future, the face of immigration enforcement will be marked by increased criminal, not civil, enforcement. There really is no need for the passage of new criminal penalties as there are already a multitude of criminal provisions that an employer can be indicted for related to the employment of unauthorized aliens, including making a false attestation on the I-9; misuse of the social security system; harboring or shielding aliens; accepting documents known to be false; and pattern and practice of knowingly hiring or continuing the employment of unauthorized workers.

Today, an I-9 audit can rapidly become a vehicle for a criminal indictment. While ICE claims that criminal prosecutions are only reserved for egregious offenders who often also run afoul of minimum wage and other labor violations, recent investigations have not focused on the traditional "sweat shop;" now, attention is on the large, substantial employer -- the Tyson’s Food or Wal-Marts of America.

What can an employer do today to increase corporate compliance with immigration laws?

• Continue to assiduously complete and maintain I-9s and consider voluntary participation in Social Security and electronic verification programs.
• Ensure that those entrusted to hire and to complete I-9s have proper training and adhere to strict compliance over productivity goals.
• Develop an immigration compliance program to avoid corporate criminal liability when rogue supervisors’ or managers’ conduct threatens to be imputed to management.
• Regard every I-9 audit and visitation from ICE investigators as a potential criminal investigation as search warrants and comprehensive raids at the worksite become standard investigative tools.

In conclusion, as in 1986 with the passage of IRCA, once again the "carrot" of legalization for workers in order to wipe the slate clean versus the "club" of enhanced enforcement is on the table. While the numerous guest worker provisions have been much in the limelight, the employer-impacted repercussions need serious study.