House, Senate May Agree on Employer Sanctions, Verification

When the controversy surrounding the proposed immigration reform legislation finally cools, provisions mandating employer verification of employee status and imposing harsh fines for hiring illegal workers are likely to be included in any bill that emerges from House-Senate negotiations.

    The House legislation, backed in large part by conservatives, focuses only on border security and workplace enforcement. The Senate bill is comprehensive, containing enforcement measures and a guest worker program and providing a path toward permanent residency for millions of illegal immigrants.

    In order to placate restive conservatives who fear voter backlash against what they call “amnesty” for undocumented workers, the Senate can begin negotiations by highlighting the area where both sides largely agree—workplace enforcement.

    Under the House bill, all employers must use a pilot electronic verification system for new hires within two years of the enactment of immigration legislation. The system would check applicants against Social Security records. Within six years, they would have to check all of their employees.

    The Senate bill would make every employer submit new-hire data to the verification system within 18 months of the Department of Labor receiving funds, an estimated $400 million, to implement the system.

    Both bills also would substantially increase fines for hiring illegal workers. Under the House bill, employers would have to pay as much as $40,000 per unauthorized worker, while the Senate sets the top fine at $20,000 per violation.

    Even before the verification system is in place, companies may have to start changing their hiring practices. Charles Kuck, vice president of the American Immigration Lawyers Association, says that tougher work site enforcement would begin immediately, with a significant increase in federal review of I-9 forms.

    “The vast majority of employers have not done I-9 audits, and they don’t fill out the I-9 correctly. Employers want to obey the law, but the law is so hard to obey,” says Kuck, who is managing partner of Kuck Casablanca, an immigration law firm in Atlanta. “No matter what passes or doesn’t pass, there’s definitely going to be an increase in work site enforcement. It’s not just the construction or service industries. It will go through all parts of the economy.”

    So far, about 5,000 employers are participating in the pilot verification program. But Kuck says there is a 15 percent to 20 percent error rate in the Social Security database, which leads to delays in hiring. The system also tends to crash.

    With these problems cropping up in the pilot system, experts wonder whether it can be scaled up to accommodate substantially more activity.

    “I do not believe the technology exists right now to force the pilot program onto a majority of employers,” says Bonnie Gibson, director of compliance at Littler Global, a law firm specializing in international migration and employment issues.

    Beyond logistical concerns, cost questions loom. Rather than $400 million, some studies estimate the system might cost $11 billion or more.

    “It’s going to be really expensive,” Gibson says. “The money is going to come from employers. There is going to be a per-head charge for this verification and it will be left to the regulatory process (to assess charges) because Congress is not going to take that on.”

    House conservatives place a strong emphasis on employer verification and sanctions, calling those steps the best way to shut off the “magnet”–jobs–that has drawn an estimated 11 million undocumented people to the United States.

    “If we have a workable and effective employer sanctions program, then I think a lot of the illegal immigrants would simply go back home because they would no longer be able to work in this country legally,” House Judiciary Committee Chairman James Sensenbrenner, R-Wisconsin, said on NBC’s “Meet the Press” on May 28.

    A verification and sanctions framework likely will be necessary before the House would consider Senate provisions that would allow 200,000 new low-skilled “essential” workers into the United States each year and would increase by 115,000 the annual H-1B visa cap for high-tech international talent. The House bill does not contain similar policies.

    “Any guest worker program is going to be a gigantic inducement for undocumented workers unless you’ve got the enforcement in place first,” says Roy Beck, president of NumbersUSA, a nonpartisan immigration reduction organization.

    Although the House and Senate are in each other’s ballpark when it comes to workplace enforcement, the real fireworks will likely explode over the three-tier program in the Senate bill that puts undocumented workers on a path toward permanent residency.

    People who have been in the U.S. for five years or more could stay; those who have been in the country two to five years would have go to a point of entry at the border and apply for a guest worker permit. Illegal immigrants who have lived in the U.S. less than two years would have to leave.

    House conservatives derisively label such a program “amnesty.” They warn that voters will make the GOP pay at the polls in November if such a policy becomes law. Business groups support guest worker provisions and permanent residency for most undocumented workers, arguing they are vital to maintaining U.S. economic growth.

    “If this debate comes down to amnesty versus border security, the only thing we’re going to produce before the election is an argument,” says Rep. Mike Pence, R-Indiana.

    Immigration reform in 1986 was an example of blanket amnesty, while the current Senate version is something less than that, according to one expert. But the problem with the bill 20 years ago didn’t revolve around amnesty.

    “The failure has been not to address the open borders since 1986,” says Gregory Wald, an immigration attorney at Squire, Sanders & Dempsey in San Francisco.