Immigration Issues: Strict Enforcement of Immigration Laws on the Horizon as Government is Destined to Continue Comprehensive Legislation Reform Battle

New Jersey Business, Jan 01, 2007 by Birritteri, Anthony

As a Democratic majority takes control of both the U.S. Senate and House of Representatives this month, comprehensive immigration reform will be among the top issues with which legislators will grapple. On this front, most Democrats are siding with President Bush's call for granting temporary worker status to illegal immigrants already in the U.S., via a guest worker program. By most estimates, this number represents 12 million people. The immigration reform bill in the House of Representatives, meanwhile, which passed last year under a Republican majority, seeks to declare all illegal immigrants felons, in addition to plans such as building 700 more miles of wall along the U.S./Mexican border.

No matter what type of compromise bill is reached between the two houses of Congress, however, one thing is clear for businesses: the federal government will want companies to check all I-9 Employer Eligibility Verification forms (the form new hires must sign, along with the documents they must provide to prove their identity and employment eligibility) to either the Department of Homeland Security or the Social Security Administration, depending on the final version of the legislation. Additionally, employers will be held more accountable for violating immigration law and face higher fines and longer jail sentences.

For businesses operating in such a diversely populated state as New Jersey, which has from 380,000 to 500,000 undocumented workers (the politically correct term for illegal aliens), it is then important to know how not to violate current and pending immigration laws, and - as a result of being too cautious about not hiring illegal immigrants - prevent discrimination lawsuits.

The I-9 form was implemented with the passage of the Immigration Reform and Control Act of 1986 (IRCA). According to David Nachman, head of Nachman Associates, the Upper Saddle River-based law firm that specializes in immigration law (additional offices are in Manhattan, Montreal, Toronto and the Netherlands Antilles), IRCA made employers the watchdogs in ensuring that employees are workauthorized, but they had to accept whatever documents were given to them at "face value."

Also, employers have not been required to do anything with the I-9 form. Submitting forms or checking them against the Social Security Administration database has been strictly voluntary.

The result of IRCA, the I-9 form and the government's lack of oversight, therefore, created a widespread market in fraudulent documents by foreign nationals seeking to comply with the I-9 rules. "In 1991, the government addressed the issue by adding a 'document fraud provision' to the law, making it illegal for any person to knowingly make, accept or alter any document," Nachman explains.

Many employers, however, were still confused by IRCA, and in their quest to abide by the law, began asking job candidates who looked foreign to show their green cards before being hired.

To rectify this problem, the government, also in 1991, passed two discrimination causes of action: discrimination on the basis of nationality and citizenship.

But it seemed that the document fraud provision and the two discrimination causes were cancelling each other out.

As David Whitlock, a partner with Fisher & Phillips LLP, the national labor law firm with New Jersey offices in Somerset, says, "The discrimination provisions state three things: an employer cannot specify what documents or combination of documents an employee can produce; employers can't require that more documents are produced than is minimally necessary to comply with the law; and employers cannot reject a document if it, again, appears to be genuine at face value.

"The consequence of that is employers err on the side of accepting documents rather than rejecting them. That is why we have 12 million (illegal immigrant) workers in this country, two-thirds of which are on the books legally. They are not undocumented as many people call them, but falsely documented."

Now, both immigration reform bills in Congress - HR 4437 and S2611 - have enforcement provisions that would require businesses to re-verify their existing workforce and verify new worker documents. Also, fines and jail terms are increasing for businesses that do not follow the law.

"The 1986 IRCA law has fines for noncompliance, but they aren't steep, and, as a result, many employers view them as a cost of doing business," says Whitlock. "The fine for an incorrect I-9 form ranges from $116 to $1,100 per form. The fine for knowingly employing an illegal alien, he says, ranges from $275 to $2,200 for a first violation. That's not a lot of money."

Last spring, however, the Department of Homeland Security began using criminal measures to go after employers who are harboring and concealing illegal aliens. The penalty now, according to Whitlock, is 10 years in prison and a fine of $250,000. "That is getting some attention," he says.

The immigration bill currently in the House would increase the civil penalties for the hiring, recruiting and referral of illegal aliens to a minimum $5,000, for a first violation. For entities that were previously subject to cease and desist orders, the minimum penalty is $5,000 while the maximum is $10,000 for each offense. For businesses previously subject to more than one previous order, the minimum penalty would be raised to $25,000.