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Immigration Reform: Dead in Congress; Alive and Well in the States

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  HR Issues Update

Immigration Reform

Immigration Reform: Dead in Congress; Alive and Well in the States

Thanks in part to the failure of Congress to enact comprehensive legislation earlier this year, immigration reform remains a hot topic in the states, as the U.S. Department of Homeland Security (DHS) – the federal agency charged with enforcing our current immigration law - steps up its enforcement efforts of employers. States continue to grapple with different approaches to the issue, with Georgia, Colorado, Oklahoma, Tennessee, Arizona and now Illinois having enacted their own immigration-related laws.

Below are some of the most recent developments:

DHS No-Match Rule – As reported earlier in HR Issues Update, the recently announced rule providing a safe harbor for employers receiving Social Security “no-match” letters has been delayed pending the outcome of a legal challenge to the rulemaking. The safe harbor rule had been scheduled to become effective on September 14.

While the outlook for the rule remains uncertain, Homeland Security chief Michael Chertoff has made it clear in recent statements that the agency plans to vigorously enforce current immigration law as it relates to employer hiring practices.

To assist our members, SHRM hosted a webcast on September 11 on the DHS “no-match” rule. The discussion covered such topics as what to do upon receiving a “no-match” letter and how the new rules will affect your workforce. Readers interested in viewing an archive of the webcast can click here.

Arizona- On September 14, SHRM, along with six other HR and employer organizations, supported a legal challenge to the recently-enacted Arizona immigration law (HB 2779) in Arizona Contractors Association v. Janet Napolitano.

In its brief, SHRM and the other groups argued that the Legal Arizona Workers Act is preempted by federal law. The recently-passed state law prohibits employers who transact business in Arizona or who employ one or more persons in Arizona from hiring persons who do not have authorization to work in the United States. It also requires all employers to use the Federal government’s voluntary Basic Pilot program to verify work eligibility of all employees. Violators will be subject to state-imposed penalties, including the suspension or revocation of the violator’s business license.

Illinois– What’s an Illinois employer to do? On the one hand, the Department of Homeland Security has encouraged employers to use the voluntary Basic Pilot system. On the other, Illinois Governor Rod Blagojevich (D) has just signed into law legislation that bans employers from using this electronic system to verify the work eligibility of new hires.

On August 13, the Illinois’ governor signed into law two bills ( HB 1743and HB 1744) that would subject employers in the state to "civil rights violations" if they take an adverse action against an employee based on feedback from the Basic Pilot program. The new law precludes Illinois employers from using the system until the DHS is able "to make a determination on 99 percent of the tentative non-confirmation notices issued to employers within a three-day period."

Look for more states to consider immigration reform initiatives in the coming months.

The next issue of HR Issues Update will
be published on Friday, October 5, 2007 2007.


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