DHS Steps Up Immigration Enforcement; AGC Offers New Compliance Assistance Tool
Despite (or in light of) Congress’s failure to pass comprehensive immigration reform legislation, the Bush Administration continues to step up enforcement of existing employment immigration laws and is expected to use new approaches in doing so.
The Department of Homeland Security (DHS) recently announced that it will begin using its voluntary Basic Pilot Employment Verification Program as an enforcement tool. The “Basic Pilot Program,” as it is known, is a voluntary program for employers to verify the employment authorization of newly hired employees via an online check of the DHS and Social Security Administration (SSA) databases. The head of DHS’s Verification Division has advised that her office will enter into a memorandum of understanding with DHS’s Office of Immigration and Customs Enforcement (ICE), under which her office will flag questionable queries by employers participating in the Basic Pilot Program and referring potential fraud cases to ICE.
Moreover, AGC sources indicate that ICE has been tasked to create new “enforcement units” by as soon as this month as part of an aggressive plan to increase workplace raids and criminal investigations. The raids are expected to focus on criminal prosecution, with the apparent objective of deporting illegal immigrant workers, deterring others from entering, and incarcerating “bad actor” employers – i.e., those who are deemed to have shown “ “reckless disregard” for the law against harboring an illegal immigrant. It is believed that wired informants and video cameras will be used and that that ICE will compensate subcontractors that bear witness against prime contractors. Sources also report that an effort is underway to place ICE attorneys in U.S. Attorney offices to fortify immigration enforcement activities.
Meanwhile, employers await the outcome of proposed rulemaking by ICE concerning employer obligations upon receipt of a “no-match” (also known as “mismatch”) letter from SSA or DHS. “No-match” letters inform employers that some of the employee name and social security numbers provided on submitted W-2s do not match SSA records. Responding to such a letter has caused particular confusion and concern for AGC members, as recipient employers must be cognizant not only of employment eligibility requirements but of antidiscrimination laws, document abuse laws, wage reporting laws, and more – in addition to the necessities of running a business efficiently and of maintaining a sufficient workforce to meet the growing demand for construction services.
Accordingly, AGC generally welcomes the issuance of better guidance on how employers should respond to the letters, as well as the safe-harbor provision included in the proposed rule. However, AGC and other employer groups are concerned about the timing and specific content of the proposal. The chief concern is that the issues addressed by the rule should be part of a comprehensive immigration reform package and should not be implemented while major immigration legislation is still pending in Congress. Other concerns center on the amount of time allotted for responsive action by employers and ambiguity as to the actions required. AGC joined nine other employer groups across industries in submitting joint comments to DHS detailing those concerns. AGC also collaborated with seven other contractor associations on a second set of comments that focused on the proposed rule’s potential impact in the construction industry. Comments are currently under review by DHS.
At the same time, according to AGC sources, DHS is working on creating a new notice letter that would accompany the no-match letter. It is believed that the letter would contain language similar to the following: "The receipt of the no-match letter could be due to the questionable immigration status of your employee, John Doe. It is possible that you, the employer, could potentially be exposed to liability under immigration laws." Although the letter would not be deemed conclusive evidence, it raises further concerns about employer exposure to liability for employing illegal aliens.
AGC reminds contractors to be cognizant of their rights and responsibilities under immigration laws. To help, AGC recently held an audio conference called “Immigration Compliance: How to Stay Out of Hot Water.” Immigration attorney David Whitlock of Fisher & Phillips delivered valuable information on how to improve I-9 compliance, what to do when the government visits the job site, how to respond to no-match letters, and what to expect on the legislative and regulatory horizon. A recording of the live audio conference and supplemental written materials are available for purchase and immediate download from the AGC e-Store. Click here for more information.
For additional resources on immigration law and employment eligibility, click here. For more information on pending federal immigration legislation and to send a letter to your members of Congress in support of AGC’s position on such legislation, click here.
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