New Immigration Enforcement Measures Announced
RELEASE: August 16, 2007
The Departments of Homeland Security (DHS) and Commerce have jointly announced new immigration measures intended to improve border security, step up enforcement of immigration laws, streamline existing guest worker programs and address the failures of the current immigration system. The new requirements take effect in 30 days.
The announcement provides that new regulations will be proposed to simplify the process of employing aliens under the H-2A and H-2B programs, which may prove beneficial to the horse industry. But the plan to more forcefully pursue enforcement of sanctions against employers for employing alien workers with faulty documents is raising concerns among employers of these low-skilled workers. Many employers in the horse industry use the H-2A and H-2B programs to employ willing alien employees.
The Senate could not agree on comprehensive immigration reform legislation earlier this summer. It has been suggested that the Departments did not adopt the new rules while Congress was debating broad immigration reform. But when Congress could not pass broad legislation, the Administration decided to move forward with the new rules.Worksite Enforcement—Stepped-up Employer Sanctions
The cornerstone of the new requirements is the announced crackdown on employers who “knowingly” hire undocumented workers. This is the so-called “no-match” regulation. Under current law, an employer must ask for documents that confirm an individual’s identity and ability to work when employees fill out the required Form I-9. These documents include a social security card. Each year employers send the Social Security Administration (SSA) earnings reports (W-2 Forms) in which the employee name and the social security number do not match. If an employer has more than 10 employees with inaccurate personal identity information, the SSA will send him/her a “no-match” letter stating that the social security information submitted by the employer for his/her employees does not match the records in the SSA database.
In addition, DHS’ U.S. Immigration and Customs Enforcement will send a similar letter to an employer if an audit indicates that an immigration status document or employment authorization document presented or referenced by the employer in the Form I-9 cannot be confirmed. The new regulations spell-out what an employer can do to avoid “knowingly” hiring or continuing to employ the individual and avoid liability for employer sanctions.
If an employer receives such a letter from either SSA or DHS, he/she must take the following actions or risk penalties. The steps that will insulate an employer from liability include:
—Within 30 days of receiving the letter, the employer must check the information against his/her own records, make any corrections of errors and verify them with SSA or DHS.
—If the employer does not find errors in its records, the employer must inform the worker of the discrepancy within 30 days.
—The worker then has until 90 days after the employer received the letter to contact the appropriate agency and correct the error.
—If the employee does not resolve the issue during that period, he/she has three days to fill out new paperwork and provide all necessary documentation.
—If the worker cannot provide the documentation, the employer must fire the worker immediately or be liable to sanctions and fines for “knowingly” employing an undocumented alien and failing to act.
Under the new regulations, fines imposed on employers who knowingly hire illegal immigrants will be raised 25%. Current fines are $2,200 for the first offense and up to $10,000 for repeat offenses. The 25% increase is the maximum allowed under current law.
The Administration will be proposing additional regulations to reduce the 29 categories of documents that employers