Worksite Immigration Compliance Symposium Offers New Debates

This year’s Third Annual Worksite Immigration Compliance Symposium held at Stanford University’s Law School last Friday, April 19th, was kick started with a keynote speech by House Representative Zoe Lofgren (D-CA).  Indeed, the prospect of immigration reform was never more real than now. For employers though, the recent release and introduction of S.744 immigration bill in the Senate was a relief for some but a signal of the monumental task ahead for Senators to parse through the voluminous details.  The Symposium highlighted the many questions and concerns raised by attendees.

Was the Regulatory Regime Worth It?

One (rhetorical?) question posed by a seasoned attorney and professor was whether the regulatory regime implemented in 1986 as part of the IRCA reforms have been worth it when considering the benefits/costs analysis.  Have we measured the cost to taxpayers and our citizens of the rise in identity theft?  The amount of money that has been poured into imposing regulations on worksite enforcement but what have the overall benefits been?  Thus far, there are no studies conducted to measure the overall benefits of our regulatory regime in which we now live.

How will mandatory E-Verify affect U.S. Citizens?

Regardless of when E-Verify will ultimately be mandated nationally, how many U.S. Citizens and legally work-authorized individuals will be negatively impacted by tentative and final non-confirmations?  Will work-authorized individuals be barred from obtaining work?

Critics claim that E-Verify, even on a mandatory scale, would not adequately address the issue of identity fraud and theft.  A system that only accepts valid information may well be creating a black market for increased identity theft.  As some had pondered, is this the price we pay for refusing to allow a national identification system?  Many other countries adopt a national identification system.  Or, as one expert attorney posited, maybe it’s a generational divide.  Perhaps the younger generations will be more accepting of a national identification card given that they came of age where privacy was a foreign concept.

1099 and the Role of the IRS

With the prospect of mandatory E-Verify, what’s to stop employers from classifying (incorrectly) workers as independent contractors (1099) in order to avoid verifying employee work authorization?  To the extent the Internal Revenue Service plays an important role in enforcing the regulations against improper 1099 classifications, the new Senate immigration bill appears ignore IRS in this respect.

A New Era of Corporate Compliance?

In a continuation from last year’s theme on corporate compliance, this year, some of the presenters highlighted the compliance provisions in the Senate’s immigration bill.  The bill’s language on corporate compliance and associated criminal penalties harkened the language of many “whistleblower” provisions from other cross-sections of the law.  Could it be that Congress intends for employers to have an even greater stake in worksite compliance through civil and criminal penalties?  [This editor says yes!]

Practical Compliance Tips from Seasoned Experts

Finally, one of the most important sessions was obtaining practical tips on conducting audits, both from the attorney practitioner’s point of view and for employers.  The speakers collectively have reviewed hundreds of thousands of Forms I-9.  Here are helpful tips that are often forgotten:

  • Create an audit plan before an audit;
  • Factor in your statute of limitations when remediating Forms I-9;
  • Trust but verify (i.e.: read the regulations to ensure it’s been properly cited to relayed to you);
  • Purge when you can (it’s a freebie!); and
  • If there is a substantive violation, it’s one per employee.

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What are your thoughts on the Senate Bill 744?  Have you looked through any of it?  I’d love to hear from you and get your comments or questions.  Stay tuned.  I’ll be writing more on the Senate Bill in greater detail.