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The Bush administration has announced plans to stiffen and revise its worksite enforcement rules to catch and punish employers that knowingly hire undocumented immigrants.
U.S. Attorney General Michael Mukasey and Homeland Security Secretary Michael Chertoff held a joint press briefing on Feb. 22, 2008, to announce several new initiatives to step up the enforcement of federal immigration laws. Chertoff told reporters that the failure of Congress to pass comprehensive immigration reform had forced the administration to act.
“Congress didn’t give us comprehensive immigration reform, so we are going to do what we can with the tools that we have, and frankly we have made progress in doing quite a bit,” Chertoff said.
However, Chertoff added, more needed to be done to combat illegal immigration, and both the Department of Homeland Security (DHS) and Department of Justice planned to crack down further on employers that flout the law and willingly hire illegal immigrants. He announced that federal fines against employers violating federal immigration laws would increase by nearly 25 percent in March 2008. The change in the fines will include a maximum civil penalty of $16,000 for multiple violations—or an increase of $5,000.
Chertoff also stated that his department would soon release a revised set of rules for employers that receive employee “no-match” letters from the Social Security Administration. The DHS released a new set of no-match regulations in August 2007. However, a federal judge in San Francisco issued a temporary injunction blocking the rules from taking effect after several labor groups joined with the American Civil Liberties Union (ACLU) and filed suit to enjoin the rules.
In issuing the injunction, Judge Charles Breyer stated that the DHS had failed to follow proper procedures as required by the Regulatory Flexibility Act (RFA). According to the RFA, federal agencies must examine the economic impact that new or revised regulations could have on smaller-sized businesses. While refusing to admit that they made any errors in crafting the final no-match rules, DHS officials did agree to conduct the RFA analysis. Breyer then delayed a final hearing on a permanent injunction against the no-match rules until March 24, 2008.
“We are very close to publishing our new no-match rule, which we think will address the issues raised by the court as a consequence of an ACLU lawsuit last year,” Chertoff said. “And we are looking forward to getting this issue resolved in the very near future.”
Another element of the stepped-up worksite enforcement, according to Chertoff, will be a new regulation that would require all federal contractors to participate in the federal government’s electronic employment verification system—E-Verify.
“Now, the federal government needs to lead by example, and in the coming weeks we are going to issue a proposed rule requiring federal contractors to use E-Verify,” Chertoff said. “This will significantly expand the use of E-Verify, and continue to build capabilities that will help people comply with the law and make it harder to violate.”
Chertoff claimed that approximately 1,800 employers were enrolling every week to use the E-Verify program. He said that the growing interest in the verification program proved that U.S. employers were eager to comply with immigration laws and that the E-Verify program was working well.
“Employers are saying they want to get on board with this,” he said. “We have more than 53,000 employers now using E-Verify, which is more than double what we had in fiscal year 2007. And more than 1.7 million new hires have been queried this fiscal year under the system.”
However a group of employer and human resource-related groups have strongly opposed the E-Verify program, claiming that the current verification system is inefficient and error-prone. According to statistics offered by the Human Resource Initiative for a Legal Workforce, E-Verify relies heavily on the Social Security Administration’s database, which has a 4.1 percent error rate.
“When you look at the entire U.S. labor force, then that error rate could potentially affect the employment verification for 6 million U.S. citizens and legal residents,” said Mike Aitken, director of government affairs for the Society for Human Resource Management, which is a member of the HR Initiative. “Rather than forcing states to take the lead, it's time for Congress to create a national employment verification system that is reliable, efficient and secure.”
Arizona recently enacted a law that requires all employers operating in the state to use the E-Verify system. Colorado, Georgia and Minnesota also require some employers to use the system. Several other states, such as Kansas and Indiana, have similar proposals pending in their state legislatures. But Illinois passed legislation in 2007 forbidding employers to use E-Verify until its accuracy could be improved.
A patchwork of state laws will ultimately prove very problematic and burdensome to employers that operate in multiple states, Aitken said.
To address this issue directly, the HR Initiative is joining with several members of Congress to endorse the introduction of the New Employee Verification Act. The intent of the legislation is to establish a new, state-of-the-art electronic employment verification system that is “adequately funded and vigorously enforced.”
Rep. Sam Johnson, R-Texas, ranking member of the House Subcommittee on Social Security, is the chief sponsor of the legislation and is set to introduce the measure on Feb. 28, 2008. Other co-sponsors for the bill include Reps. Kevin Brady, R-Texas, and Paul Ryan, R-Wis.
Bill Leonard is senior writer for SHRM Online.
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