G8’s Immigration Bill Shakes Up E-Verify, I-9 and More!

In the early hours of Wednesday morning, the Senate’s “Gang of Eight” Senators released its comprehensive immigration reform bill, all 844 pages of it, entitled the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.”

I confess, I didn’t read all 844 pages but I did read enough to bring you the most relevant highlights for our blog today.  [Visit our sister blog here to read a short recap of the entire bill and to view the 17-page summary.]

Mandatory E-Verify

I’ve been predicting this for the last few months so it probably comes as no surprise to our long-time readers that Congress wants to implement the E-Verify program on a mandatory, national basis.  The bill proposes employers enroll according to the following timeline.  Employers would be provided a 90 day notice in advance:

  • All federal agencies either on the day of enactment or within 90 days from date of enactment
  • Federal contractors (if not already mandated under Federal Acquisition Regulations (FAR))
  • Employers who are considered to be in “critical infrastructures”
  • Employers with more than 5,000 employees must enroll not later than 2 years after regulations are published
  • Employers with more than 500 employees must enroll not later than 3 years after regulations are published
  • All employers must enroll not later than 4 years after regulations are published
  • Agricultural labor or services would be required to enroll 4 years after the enactment of the Legal Workforce Act

The timeline is actually not as rigid as it looks because it’s contingent on DHS publishing regulations.  If history is any indicator, the Department of Homeland Security (DHS) takes months to publish regulations.

Mollifying E-Verify Critics

The bill incorporates protections for workers that are lacking in the existing E-Verify System.  Individuals who wish to appeal a non-confirmation would finally, under this bill, have a procedure by which to do so, by filing an administrative appeal.

Critics also complained that employers who relied in good faith on the results generated in E-Verify may be exposing themselves to other liabilities.  This bill carves out protections for employers from liability based on good faith reliance on E-Verify results.

Identity fraud was also a major concern for the Senators.  The bill requires DHS to develop a mechanism for individuals to “lock” their social security numbers in order to avoid abuse and fraud from overused numbers.

To ensure E-Verify will increasingly become more accurate, the bill would require the General Accounting Office to conduct an annual study on E-Verify’s accuracy, efficiency, integrity and impact.  Given that the last independent report on E-Verify stats was conducted in 2009, I’m very excited to read this portion of the bill.

Civil Penalties

For employers who hire undocumented workers after their mandatory enrollment date, but fail to verify the employee in E-Verify, the employer is presumed to have knowingly hired an unauthorized worker.  This is particularly important because the civil penalties for knowingly hiring unauthorized workers are $3,500 to $7,500 for each unauthorized alien, for the first offense.

Additionally, record-keeping failures will result in civil fines of $500 to $2,000 for each violation.

Civil penalties will become effective one year after the date of enactment of the bill. The bill is serious about punishing employers.  Therefore, partnering with experience counsel to ensure your organization properly understands and complies with any enacted law will be critical.

Ensuring Compliance

Employers are not currently allowed to use E-Verify to screen potential hires.

The bill reaffirms this rule. Employers would have a three-day grace period to re-verify existing workers upon expiration of the workers’ employment authorization.  Currently, there is no grace period.

Monies collected from the payment of civil penalties (see above) will fund efforts on educating and training employers on E-Verify.  More importantly, employers would be required to satisfy “refresher” trainings on the use of E-Verify.

Another “New” Form I-9

There’s a possibility of future changes to the current Form I-9.  The bill proposes paper, telephonic, electronic, as well as a form that is integrated with E-Verify.  The details are left for DHS to decide.  [I’ll be writing more on this later….]

However, the form would still contain an attestation requirement, along with verification of identity and employment authorization.  The bill gives DHS the flexibility to revise the list of acceptable documents based on the incidence levels of fraud.  In this regard, the photo-matching tool in E-Verify is a favored approach in the bill.  You will likely see more states providing DHS access to its motor vehicle databases.

Increased Involvement of Social Security Administration

What’s interesting is that this bill propels the Social Security Administration (SSA) directly into the spotlight of immigration reform.  It calls for SSA to create fraud-resistant, tamper-resistant, wear-resistant cards in order to combat document fraud.  The bill appropriates $1 billion to fund this endeavor.

Moreover, the bill restricts SSA from issuing replacement social security cards to individuals to three cards per year, and no more than 10 cards in a person’s lifetime (barring extenuating circumstances).  [IMHO, this sounds about right.  How many times can a person lose their social security card, right?]

Additional Points to Consider

To reduce the incentive for employers to skirt the law by taking advantage of undocumented labor, the bill expressly protects all workers by allowing them to pursue remedies under workplace and labor laws, regardless of their unauthorized status.  These remedies include those that are allowed under federal, state, or local laws governing wages and hour, benefits and employment standards, labor relations, workplace health and safety, work-related injuries, non-discrimination, and retaliation.

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Remember, it’s only a bill.  The bill will have to jump through many hurdles to become law (if at all) and will most definitely be amended over the next few weeks (or months) to come.  We’ll keep bringing you new developments. In the meantime, feel free to send me your comments, messages, or corrections in case you disagree with any of the above.  I’m excited to see movement in Congress and looking forward to the debates that follow!