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Employers ignore immigration trends, law at their own peril

As evidenced by recent Immigration and Customs Enforcement (ICE) raids of businesses in Mississippi and elsewhere in the country, knowledge of immigration law is increasingly important for Mississippi businesses.

“Since the 1990s, the U.S. has seen a dramatic increase in the arrival of new immigrants,” said R. Reid McKee, an attorney with Watkins and Eager, PLLC, Jackson, who specializes in immigration law. “As part of this trend, Southeastern states, including Mississippi, have recently experienced sizable growth in their foreign-born populations. While the largest and most urbanized states in the U.S. like New York and California continue to attract the majority of this nation’s new immigrants, immigrants increasingly bypass these ‘traditional’ destinations and choose to locate in places like Mississippi.”

According to recent studies, Southeastern states have seen their foreign-born populations increase at rates significantly higher than the average rate of increase for the United States as a whole. This change is likely due to the increased availability of jobs in the areas of manufacturing, food processing and construction in these states.

“Employers ignore these demographic trends at their peril,” McKee said. “The likelihood that employers in Mississippi will encounter and want to employ foreign-born individuals increases with each passing day. Therefore, an increased awareness of and attention to federal immigration law is becoming a practical necessity for employers in Mississippi. Savvy employers can also use knowledge of immigration law to avoid legal pitfalls and to compete in an increasingly competitive, global market.”

Knowledge of immigration law starts with understanding government reform instituted after September 11, 2001. First of all, the INS (Immigration and Naturalization Service) no longer exists. As part of reforms instituted after September 11, 2001, INS was moved out of the Department of Justice (DOJ) and reassigned to the newly-created Department of Homeland Security (DHS).

There are now three federal agencies which share responsibility for enforcing and applying the nation’s immigration laws: United States Citizenship and Immigration Services (USCIS); Customs and Border Patrol (CBP); and Immigration and Customs Enforcement (ICE).

“Generally speaking, USCIS deals with dispensing immigration benefits, such as employment authorization documents (EADs) and ‘green cards’ (I-551s), CBP inspects aliens when they arrive at our borders and our ports of entry, and ICE is responsible for enforcement activities, such as identifying and apprehending criminals and immigration law violators,” McKee said. “ICE is the agency which conducted the highly-publicized raids at various worksites in Mississippi and elsewhere around the country in 2005 and 2006.”

The best defense against any allegation of unauthorized employment is to maintain maximum compliance with the I-9 employment eligibility verification procedure. Since 1986, employers in the U.S. have been required to screen employees for proof of their identity and authorization for employment when they begin work. McKee said employers accomplish this by attesting on Form I-9 that they have reviewed documentation provided by the employee, which reasonably appears to be genuine and which establishes his or her identity and work authorization. Employers are required by law to retain I-9s in case of an audit or workplace investigation.

“While I-9s are supposed to be completed by the employer within three business days of the date of hire, an employer may also be obligated to re-verify the work authorization of certain employees. For instance, if a company employs a worker whose work authorization is set to expire on a certain date, the employer will need to re-verify this employee’s work authorization after this date has passed. Also, employers may be required to re-verify the employment eligibility of their employees if ‘suspicious circumstances’ arise, such as the employer’s receipt of a ‘no-match’ letter from the Social Security Administration (SSA). ‘No-match’ letters inform employers that Social Security numbers and/or names submitted by certain employees do not match SSA records.

“While there can be many reasons other than unauthorized employment that an employee’s name or Social Security number appears in a no-match letter, employers must take these and other indications of potential unauthorized employment seriously and investigate them carefully.”

McKee said that, unfortunately, there seems to be no sure-fire way to avoid workplace enforcement raids. For instance, in December 2006, ICE made national headlines by raiding several facilities in Colorado and in other western states, which were operated by one of the nation’s largest meat-packers, the Swift Packing Company. After these raids, Swift revealed that the company had been participating in a voluntary federal program designed to provide instant online employment eligibility verification, the Basic Pilot Program (BPP), in addition to following the required I-9 procedures.

“Despite being advertised by the government as a useful tool for employers, the BPP was unable to detect that hundreds of Swift’s employees were using stolen identities as a means of ‘establishing’ their work authorization,” McKee said. “Moreover, Swift’s enrollment in the program apparently did little, if anything, to prevent the company from being raided by the government.”

For achieving maximum I-9 compliance, McKee recommends employers conduct occasional attorney-supervised “mock” audits of all I-9s retained on its workforce. These audits can be a useful tool in reducing an employer’s potential liability for technical and substantive violations of the law. As well, these audits provide excellent opportunities for the training of staff members who regularly handle these forms as part of their job duties.

“These audits are particularly important in industries that employ a high percentage of foreign-born workers or have been targeted by recent government enforcement initiatives such as national security and defense-related industries,” McKee said.

There has been much discussion of comprehensive immigration reform in the current legislative session of the U.S. Congress. McKee thinks the prospects for some kind of comprehensive immigration reform are very high at this point.

“Presently, there seems to be a lot of common ground between Congress and the President on this issue, and I expect some variation of the bill considered by the Senate in 2006 (S.B. 2611) to become law later this year,” McKee said. “If passed into law, this legislation would work major revisions into U.S. law, affecting both employers and employees.

“I think it is important for employers to realize that the bill, which was considered by the Senate last year, did much more than institute a temporary guest worker program — a feature of the legislation which has been very controversial and denounced as an ‘amnesty’ by its opponents. This legislation also required employers to utilize an Electronic Employment Verification System (EEVS) patterned on the voluntary Basic Pilot Program. The Senate bill also featured increased employer sanctions for hiring or continuing to employ unauthorized workers.”

McKee said while many employers are very receptive to the idea of a government-sponsored electronic employment verification system to replace or supplement the current I-9 process, they also want to make sure that any electronic system is reliable and works as advertised.

“Unfortunately, there are many indications that the government’s first attempt at establishing such a system (the Basic Pilot Program) is fraught with numerous problems and inefficiencies,” he said. “Furthermore, I think employers are right to be concerned about the prospects of increased employer sanctions when current sanctions have never been credibly or uniformly enforced. What good are tougher penalties if they also will not be enforced?”

McKee said he hopes any future legislation will also address some other areas of concern for employers, such as the H-1B cap and backlogs on employment-based immigrant visas. The U.S. labor market is in need of both skilled and unskilled labor. As many employers know, the need for highly-skilled labor in certain sectors (engineering, computing, medicine, etc.) is particularly acute.

“Easing some of the current numerical restrictions on work-authorized, non-immigrant visas (e.g., H-1B) and employment-based immigrant visas would be an effective way to accommodate increased demand for highly-specialized, skilled labor in the U.S.,” he said.

McKee also advises employers to be particularly attentive to what is going on with respect to state legislation regarding immigration. While regulating immigration is generally an exclusively federal issue, many state legislatures have responded to increased public concern about immigration by attempting to pass laws which directly or indirectly affect immigration. Some of these laws may be preempted by existing federal law, but for now this issue remains unclear.

“Many of these bills seek to punish employers for hiring unauthorized employees and place burdensome additional requirements on employers,” McKee said. “In fact, a number of such bills have already been introduced to the Mississippi Legislature this year. I urge employers to examine these bills closely and contact their local legislators to voice any of their concerns.”

Contact MBJ contributing writer Becky Gillette at bgillette@bellsouth.net.

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