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

The civil penalty for paperwork violations, including failure to use a new verification system, would be a minimum $1,000 and a maximum of $25,000. For businesses engaged in a pattern or practice of hiring and employing unauthorized workers, the maximum fine would be raised from $3,000 to $50,000 for each unauthorized employee. Additionally, a minimum prison sentence of one year would be established, up from a maximum of six months under the current law.

According to Whitlock, the Congressional proposals discuss two systems that may be used to verify workers. One is a Department of Homeland Security's (DHS) Basic Pilot Program, and the other is the Social Security Administration's Number Verification System.

Whitlock recommends companies use the Social Security Administration's system because DHS' program "is riddled with errors. The database (in verifying a person's information) is suspect. The U.S. Chamber of Commerce estimates there is an error rate of 20 percent to 35 percent. Others claim it is as high as 40 percent."

He also warns that "in order to participate (in the DHS system), a business is essentially agreeing to be audited. The head of DHS' pilot program announced she was going to forward employer databases to the Immigration and Customs Enforcement division. So if you participate, you become a target of enforcement."

The Social Security Administration's Number Verification System sends back a mismatch letter if a person's name does not correspond with the Social Security number. One fault in Social Security's methods is that the administration contends the numbers should not be checked on a pre-employment basis. "That's silly," says Whitlock. "If you can't do it on a pre-hire basis that means you have employed this person."

Nachman explains that since 9/11, security and technology have come more into play concerning immigration issues. "Many new background checks and databases have been created and many databases have been intertwined with programs that track foreign nationals in the U.S. As an example, foreign national students are being tracked by the Student Exchange Visitor Information System (SEVIS)," he says.

Looking into his crystal ball, Nachman sees the government actively pushing employers into using DHS' Basic Pilot Program, which traces its roots to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

A major area where businesses must protect themselves against violating immigration law is the hiring of contractors who may employ illegal aliens. This is especially true after the Wal-Mart case, in which the company was dealing with a dozen contractors in 21 states who were allegedly employing illegal aliens as cleaning personnel. A raid on 60 stores in October 2003 led to the arrests of 245 allegedly illegal immigrants. Wal-Mart subsequently agreed to pay $11 million in a civil immigration case.

"The Wal-Mart case has had a big ripple-effect," says Nachman. "The allegation made by the government against Wal-Mart is that its senior level executives knew that these people were not authorized to work. As an end result, companies are now required to be watchdogs and make sure contractors are hiring individuals who are properly authorized. In the old days, businesses didn't have to do that. When they hired a contractor, they were exempt from collecting I-9 forms. Now companies are telling contractors, 'You have to hire an auditor who is skilled in reviewing the employment verification process, and we want the audited documents to be certified.' "