Immigration and Employment Verification Issues for Employers

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On April 3, 2009, the U.S. Citizenship and Immigration Services (USCIS) implemented the newest Form I-9 for the verification of employment eligibility for new hires.

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I-9 form
In 2007, for the first time since 1991, the USCIS issued a revised Form I-9, Employment Eligibility Verification, for immediate use and a new M-274, Handbook for Employers, Instructions for Completing the Form I-9.

All employers are required to complete a Form I-9 for each employee hired in the United States. The USCIS has encouraged employers to start using the new form as soon as possible. Employers that fail to use the new form after the effective date, April 3, 2009, are subject to fines and penalties.

A copy of the new Form I-9 can be found at www.uscis.gov/files/form/I-9.pdf. You can find the new handbook at www.uscis.gov/files/nativedocuments/m-274.pdf.

The Department of Homeland Security's "No-Match Rules"
In August of 2007, the Department of Homeland Security (DHS) issued a series of regulations and procedures called the "No-Match Rules" for employers that receive employee no-match letters from the Social Security Administration. The No-Match Rules would have forced employers receiving such letters to resolve the legal status of the workers in question within 90 days. Shortly after though, a federal judge imposed a temporary injunction blocking the enforcment of the new rules, but agreed to delay a final decision on whether to make the injunction permanent. In response, the DHS issued a supplement in late March 2008 which addresses the grounds cited for the temporary injunction. Only time will tell, however, whether the new proposals will completely satisfy the court's issues with the No-Match Rules.

Audit your employment verification policies and practices with the Employment Practices Self-Audit Workbook

SSA considers cutting red tape of E-Verify system
While employers wait for the outcome of the DHS' appeal of the "no-match" rules, the Social Security Administration (SSA) is considering cutting some of the red tape of the E-Verify system. Currently, employers that receive no-match letters must make a trip to their local SSA office to try to verify a worker's employment status. According to a report that evaluates the E-Verify system, the SSA is considering no longer requiring employees whose information doesn't match up to make a trip to their local SSA office.

Audio Conference:E-Verify Required for Federal Contractors and Subcontractors and Other Key Developments

Immigration history in the United States
The United States has had a number of different approaches to immigration. Initially, immigration was unlimited and encouraged. Congress later moved to quotas focusing on national or ethnic groups.

During the 1940s and 1950s, Congress struggled with the "Bracero Program," which authorized contractors, sometimes called "farm bosses," to contract with foreign nationals to do agricultural work (usually hand-harvested crops), and the nationals were then deported at the end of the season.

Finally, in 1952, Congress passed the Immigration and Nationality Act, which established the present structures, and in 1965, it replaced ethnic and national quotas with quotas based on perceived employer needs and job vacancies.

In 1960, there were fewer than a million undocumented immigrants, but most experts now estimate there are least 10 to 12 million, and immigrants now make up at least 15 percent of the labor force. Latinos alone account for almost 37 percent of 2006 U.S. employment growth and fill approximately two out of three new jobs in the construction industry, according to the Pew Hispanic Center.

Another landmark piece of immigration legislation, called the Immigration Reform and Control Act, was voted into existence under the Reagan administration in 1984. It is the most recent far-sweeping legislative action on the issue of immigration to date.

No one defends the current system, which by all accounts is broken. Nevertheless, there is no clear consensus on a fix. Indeed, there is no accepted mechanism for determining job "needs" or measuring the effects of immigration levels on domestic job rates.

Audio Conference: Employers Targeted in Immigration Crackdown: How to Audit Policies Before ICE Does

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Related articles on Immigration and Employment Law featured in HR Hero Line and the Employment Law Post

• Potential Immigration Changes Under the Obama Administration
  (Michigan Employment Law Letter, August 2009)
• What Should Employers Do When I-9s Aren't Filled Out Completely?
  (Colorado Employment Law Letter, July 2009)
• Mass Audit Notices from ICE Evidence of New Immigration Tactic
  (Human Resources News, July 2009)
• Obama, DHS 2010 Budgets Hint at Immigration Priorities
  (Michigan Employment Law Letter, June 2009)
• New I-9 Form Required Starting April 3
  (New Jersey Employment Law Letter, April 2009)
• Top Employment Issues for States in 2009: Part 1 - WARN Acts, Immigration, ADA, and Unemployment Insurance
  (Employers State Law Alert , February 2009)
• Employer Has Close Call in Discimination Case
  (Kansas Employment Law Letter, May 2007)

HR Tools for Immigration

• Sample Policy - Employment Eligibility Requirements
• Forms - Immigration