What Does the Immigration Bill Mean for Employers?

by Jacob M. Monty

The columnist outlines key provisions of legislation before the U.S. Congress and makes a case for employers to consider supporting Senate Bill 2611.

Jacob M. Monty is an attorney and managing partner at Houston-based Monty Partners LLP, an employment and immigration law firm.

The economy produces more jobs than there are U.S. workers available, making immigrants critical to the American workforce. Importantly, several sectors serving as building blocks for other industries attract immigrant workers. The construction industry employs an estimated 2.4 million foreign-born laborers. Many construction companies fear losing this valuable immigrant labor.

The U.S. Senate recently passed the most sweeping immigration bill in 20 years, long favored by President Bush, that would allow millions of illegal immigrants to become United States citizens. The bill couples border security and enforcement with a guest-worker program to put most of the 11 to 12 million illegal immigrants on a path to U.S. citizenship.

Supporters of the Senate bill now brace for battle with the House of Representatives. Senate legislation must be reconciled with a vastly different House bill that calls for tough border security and enforcement measures. The Conference Committee, consisting of members from each house, will meet to work out the differences. The bill will then be presented to President Bush to be signed into law by year-end.

Below are key provisions to the Senate and House Bills:

Temporary Guest Worker Program

• Senate - Creates a temporary worker program, with a potential path to legal permanent residence for individuals currently outside the U.S. Employers seeking to hire foreign workers would first have to try to recruit an available American worker.
• House - No such provision.

Legalization of Undocumented

Immigrants

• Senate - Provides legalization criteria for three different groups. The major one, "Earned Legalization Program," would provide a path to legal permanent residence for undocumented immigrants who have been in the U.S. for five years, employed for three of those, and who meet other requirements.
• House - No such provisions.
• Worksite Enforcement
• Senate - Requires employers to participate in an electronic employment eligibility verification system within 18 months.
• House - Requires employers to participate in an electronic employment eligibility verification system within three to six years.

Criminal Penalties for Existing

Illegal Immigrants

• Senate - Mandates penalties for smuggling aliens, but offers exceptions for those who provide "humanitarian" assistance to immigrants, including medical care and housing.
• House - Makes it a federal crime to live in the United States illegally. Individuals who help illegal immigrants to enter or stay in the country would also face criminal penalties.

What You Should Know

Experts agree that today's U.S. economy is bigger and faster-growing directly because of the influx of illegal workers. But differences between the House (H.R. 4437) and Senate (S 2611) bills may result in deportation for these workers.

In 1995, the House of Representatives passed a bill with provisions to criminalize illegal immigrants and bolster border security. Recently, rallies and marches have increased pressure on Congress to abandon the tough measures this bill proposes. An estimated 12 million foreign nationals are living illegally in the U.S.

Protect Yourself as an Employer

Below are some recommended steps to safeguard your business:

• Do not sign up workers who may benefit from the Guest Worker Program. Doing so is an admission the employer knows the employee is without authority to work in the U.S. and would subject the employer to fines.
• Avoid asking any employee about their particular immigration status. Such a discussion may suggest an employer is aware the employee is without authority to work in the U.S.
• Verify every person you hire is authorized to work in the United States.
• Regardless of size and number of employees, every employer must execute a Form I-9 for each employee.
• Update the Form I-9 for employees with a specific period of employment authorization.
• Keep the Form I-9 for three years, or for one year after the employee's termination.
• Allow new employees to select which documents they wish to use for proof of work authorization. It is illegal to ask for more documents or different documents.
• Never refuse a document simply because you don't recognize it. Social Security cards alone come in more than 16 versions. Remember, you are not expected to be a document expert.
• Accept original documents or a receipt showing the worker recently applied for a replacement document. A worker who shows you a receipt has 90 days from the date of hire to obtain and provide you with replacement documents(s).

Remember, the law has not yet changed; the Conference Committee could fail to come up with a compromise between the House and Senate versions of the Immigration Bill. Employers should contact their trade associations and Congressional representatives to urge an employer-favored compromise and support S 2611.