On June 27, the Senate passed S.744, the Border Security, Economic Opportunity, and Immigration Modernization Act, by a bipartisan vote of 68 to 32. The comprehensive legislation includes provisions covering border security, legalization procedures for unauthorized aliens, employment-based legal immigration and enhanced employment verification requirements. The bill now heads to the House, but it is unclear whether the House will take up the Senate bill, consider its own version of comprehensive immigration reform or consider a series of “incremental” reform measures.
S.744, in its current form, will have a significant impact on HR and immigration professionals’ business practices. A few key HR provisions of the bill include:
- Employment Verification System - The bill phases in, over four years, a requirement that all employers must use an employment verification system to verify employment eligibility of all their new hires. Under the new system, 1) employers must attest on a new “form” that they have verified the new hire’s employment and identification status by examining specific documents; 2) once the attestation process is completed, employers must verify the new hire’s name, Social Security number or work authorization number through an electronic employment verification process; and 3) once the first two steps are complete, employers must verify the identity of each individual hired using either the “photo tool” program or another identity authentication program. The Department of Homeland Security is also given the authority to require employers to make and retain photocopies of all documents provided by an employee during the work authorization process.
- Employment Verification Process - The verification system will give the employer a confirmation, or in the event of a nonconfirmation of an individual’s work eligibility, a “further action notice.” An employee that receives a further action notice will be able to contest a nonconfirmation through an appeals process. The bill creates a fairly lengthy administrative and quasi-judicial review process of up to six months or longer for an individual to contest a nonconfirmation. Employers would not be permitted to terminate individuals who had received a nonconfirmation until the employee had exhausted the appeal process or the individual chose not to contest the nonconfirmation.
- Employer Fines and Sanctions - Employer fines for paperwork violations will increase from between $100 and $1,000 under current law to between $500 and $8,000 per worker. Fines for knowingly made hiring violations will also increase to a maximum of $25,000 per employee as well under the legislation. Employers may additionally face up to 10 years in prison for criminal "knowingly hire" violations.
- Good-Faith Compliance - The legislation establishes a “good-faith defense” of compliance for employers that participate in the system. The defense, however would not apply to employers that have “pattern and practice” violations and for ones that have not used the system.
- Pre-emption of State Law - The legislation would allow federal immigration law to pre-empt any state or local law in regard to criminal or civil fines for 1) hiring or continued employment, or 2) status verification for employment eligibility. States could, however, continue to award business license on the basis of compliance with the federal system.
- Green Card Backlog - The bill also aims to clear the green card backlogs over a seven-year period, during which time a new “merit-based system” will provide additional visas for people with strong prospects in the United States. Points will be awarded based on education, employment and, in part, family ties as well as other factors.
- H-1B Visa Numbers - S.744 increases the H-1B cap to 115,000 visas a year. The cap will adjust up or down each year by up to 20,000 visas, depending on usage and unemployment, with a maximum of 180,000 visas, and will provide 25,000 H-1B visas for U.S. STEM advanced degrees to replace the existing 20,000 U.S. advanced degree cap exemption.
- H-1B Posting Requirements - The bill places an additional requirement on all employers to recruit U.S. workers by posting a job opening on a Department of Labor website for 30 days and attesting to nondisplacement of U.S. workers for 90 days before and after filing of a labor condition application. The bill also creates a new three-level prevailing wage system for most employers – effectively upwardly adjusting wages. The concern is that under this new proposed prevailing wage system, employers would pay their foreign national workers more than their similarly situated U.S. workers.
SHRM and its strategic affiliate, the American Council on International Personnel (ACIP), worked side-by-side, directly lobbying the Senate and engaging our members on various aspects of the legislation. One area that we spent a great deal of time and effort on was trying to amend the employment verification elements of the legislation (See related article). SHRM and ACIP worked with Senators Rob Portman (R-OH) and John Tester (D-MT) on an amendment that would have 1) created an entirely electronic, integrated verification system (virtually eliminating the Form I-9); 2) expedited the use of knowledge-based authentication (KBA) in the base Senate bill to combat identity theft in the employment process; 3) created an alternative electronic verification process using KBA technology for all new hires; and 4) strengthened the safe-harbor provisions for employers for employment decisions made on the basis of information produced by the system. As noted previously, the Portman-Tester amendment was not included in the bill that passed the Senate, but we continue to work to address the issues raised by the amendment as the legislative process continues.
A full explanation of all of the provisions important to HR professionals can be found at ACIP’s website HERE.