Immigration: Past, Present and Future

While Congress battles over immigration, employers struggle daily with the problems surrounding immigration issues. Human resource professionals in Florida in particular deal with these immigration issues as Florida, with 850,000 unauthorized immigrants, ranked third behind California and Texas as the home for unauthorized immigrants in January 2005. According to Department of Homeland Security (DHS) statistics, there were an estimated 10.5 million unauthorized immigrants residing in the United States in January 2005 compared with 8.5 million in January 2000.

Employers face problems regarding immigration as a result of past laws such as the Immigration Reform and Control Act (IRCA) that was passed in 1986 and established Form I-9 legal requirements. Presently, employers may be able to receive assistance with immigration problems through a new program known as "IMAGE." Finally, there may be help on the way in the future through current legislation being considered by Congress. This article examines these three aspects to help HR professionals better understand and deal with immigration issues.

The Past:

IRCA and I-9''s

The prevalence of immigrants in America’s and Florida's labor force means compliance with IRCA and its Form I-9 legal requirements is an absolute priority for every business.

IRCA imposes penalties on employers for knowingly hiring or continuing to employ aliens who are not authorized to work in the United States. IRCA requires employers to verify employment eligibility of all new employees when hired. IRCA also prohibits “citizenship-status” discrimination to prevent employers from using the verification procedure to discriminate against “foreign looking” or “foreign sounding” job applicants.

U.S. Immigration and Customs Enforcement (ICE) enforces IRCA. Employers are principally targeted for ICE inspections based on actual information or tips providing cause for suspicion that employers are engaged in hiring undocumented workers. Depending on the results of ICE''s investigation, an administrative hearing may follow and if a Final Order is issued, which cannot be appealed, fines range from $250 to $10,000. Even if there are no illegal alien employees, employers can be fined $100 to $1,000 for each employee for whom the I-9 was not properly completed, retained, and/or made available to ICE.

Violating IRCA – Good Faith Defense to Civil Enforcement

Compliance with I-9 requirements establishes a “good faith” defense, unless the government shows the employer's actual knowledge of the employee's unauthorized status. Other factors considered include: percentage of workforce unauthorized; percentage of workforce for whom I-9 was missing or improper; willingness to cooperate; failure to correct previous violations; and existence of future compliance measures.

Employers are only obligated to examine the employee’s work documents and, if they reasonably appear to be genuine and relate to the person presenting them, the employer must accept these documents. Failure to accept reasonably genuine documents could actually subject an employer to liability for immigration-related employment discrimination.

Violating IRCA – Penalties & New Enforcement Procedures

Criminal: Persons or entities convicted of having engaged in a pattern or practice of knowingly hiring unauthorized aliens face fines of up to $3,000 per employee and/or 6 months imprisonment. Employers who assist employees in obtaining fraudulent documents may be imprisoned for up to 5 years.

Debarment: An additional sanction, known as "debarment" may be imposed against government contractors. However, debarment, only applies to “hiring” violations and not to “paperwork” violations.

RICO: Recently, the Supreme Court considered whether a corporation, acting together with outside recruiters and staffing agencies to hire illegal aliens, may be liable under the Racketeer Influenced and Corrupt Organizations Act (RICO) as an "enterprise-in-fact." While the case has been remanded back to the district court, if the court ultimately rules against the employer, it could be liable for treble damages under RICO if they are deemed to have knowingly used subcontractors or recruiters for the common purpose of employing illegal aliens. Federal law prohibits a person or entity from hiring an alien knowing the alien is unauthorized to work in the United States.

Money Laundering & Forfeitures: Recently, the government began charging employers who knowingly hired illegal aliens with conspiracy to commit money laundering, claiming businesses are using money gained from knowingly hiring illegal aliens to promote a criminal enterprise that continues to illegally hire undocumented aliens. The government claims businesses conceal their illegal profits by not reporting that their profits are derived from the illegal hiring of undocumented aliens. Thus, the government can obtain forfeitures of any assets it establishes are the fruits of hiring illegal aliens.

ICE investigations nearly doubled in 2006 from 2004, and forfeitures and settlements included millions of dollars in cash and property and possible prison terms and fines for the corporate officers. In 2006 ICE stated, “If you're blatantly violating our worksite enforcement laws, we'll go after your Mercedes and your mansion and your millions. We'll go after everything we can, and we'll charge you criminally.” Therefore, employers must carefully monitor not only their own hiring practices but their subcontractors' practices to ensure there is no possible claim the employer knew its subcontractors were hiring illegal aliens.

Establishing an Effective IRCA Compliance Program

Employers should designate an IRCA compliance officer, establish a standard written IRCA compliance policy that is integrated into other personnel policy, materials, and applications, provide clear guidance to hiring managers, subcontractors, and recruiters on I-9 procedures, consult with counsel before making immigration-related hiring and firing decisions, and consider participating in ICE’s basic employment verification pilot program, known as "IMAGE."

The Present:

"IMAGE"

The ICE Mutual Agreement between Government and Employers or "IMAGE" is a voluntary program to assist employers in targeted sectors to develop a more secure and stable workforce and to enhance fraudulent document awareness through education and training. As part of IMAGE, ICE and the U.S. Citizenship and Immigration Services provides education and training on proper hiring procedures, fraudulent document detection, use of the Basic Pilot Employment Verification Program and anti-discrimination procedures. After submitting to a I-9 audit and implementation of DHS''s best hiring practices, the company will be considered "IMAGE Certified" and gain membership in the Basic Pilot Employment Verification Program. Using this program, employers can verify that newly hired employees are eligible to work in the U.S. This free, Internet-based system is available in all 50 states and provides an automated link to the Social Security Administration database and DHS immigration records. Employers can find more information about IMAGE at www.vis-dhs.com/Employer Registration/.

The Future:

Currently, both Congress chambers are actively engaged in developing legislation to overhaul immigration law. However, the only law passed so far is the “Secure Fence Act” which requires construction of at least 700 miles of two-layered reinforced fencing along the southwest border and mandates the use of cameras, ground sensors, UAVs and other forms of hi-tech surveillance. $1.8 billion has been authorized to build this fence.

Employment-Related Provisions in House and Senate Immigration Reform Bills

The House bill adopts an enforcement-only approach without a comprehensive immigration reform to legalize undocumented workers or for a guest worker program to import foreign-born workers from abroad. The Senate bill adopts a comprehensive approach to immigration reform combining increased enforcement with opportunities for legalization of undocumented workers. Both the House and Senate bills call for mandatory verification in hiring, increased DHS enforcement, and increased monetary and criminal penalties.

The House bill specifically expands the definition of alien smuggling, harboring and transporting aliens as a federal felony to include anyone who assists, encourages, directs or induces an alien to reside in or remain in the U.S. unlawfully whether or not for economic gain. The assets of anyone convicted under these provisions are subject to civil forfeiture proceedings. Given that the current IRCA does not have a forfeiture provision, this would allow U.S. Attorneys to obtain corporation assets without indicting the corporation and/or directors for money laundering.

The Senate bill specifically provides for an earned adjustment to permanent residence for undocumented immigrants who have worked in the U.S. for a total of 3 years; who were present in the U.S. on/before April 5, 2001; who pay their taxes; learn English and civics; and pay a $2,000 fine; deferred departure for aliens present on January 7, 2004 coupled with access to non-immigrant visas including a guest worker program; and the creation of a guest worker program with 325,000 visas per year for foreign-born workers of 3 years in duration renewable once for maximum 6 years.

Additionally, the Senate bill includes a bar to noncompliant employers from receiving federal contracts, grants, or cooperative agreements, and liability protection for employers who have complied with the verification system and have relied on its accuracy in good faith.

Conclusion

It is doubtful an immigration reform bill will be enacted by Congress and signed by the President soon. However, the DHS is expected to pursue an aggressive and high-profile immigration enforcement approach targeting select undocumented workers and their employers to demonstrate the government is serious about immigration enforcement. Therefore, employers, through their HR professionals, would do well to review their I-9 compliance procedures, consider possible participation in the IMAGE program, and monitor the proposed legislation.

Myrna L. Galligano practices in the area of labor and employment law for the law firm of Holland & Knight LLP. She is the coordinator for the firm's labor and employment law client training program and has conducted extensive management training for many client companies in various fields, including health care services, insurance, hospitality, entertainment, cruise lines, manufacturing and technology. She is the 2007 Co-Director for Governmental Affairs for HR FL. A past vice president (2000) and past president (2001) of the Space Coast Human Resource Association, she is currently the legislative chair for that chapter. She is also a member of the South Brevard Society for Human Resource Management. Ms. Galligano received her B.A. in business management in 1988 and her J.D. in 1991 from the University of Houston. She gratefully recognizes contributions to this article by Tara Vance, Leon Fresco and Christopher Nugent who practice immigration law at Holland & Knight LLP.

EDITOR''S NOTE: THIS ARTICLE SHOULD NOT BE CONSTRUED AS LEGAL ADVICE.