Under the immigration law passed in the President Reagan years, the employer is obligated to complete work eligibility checks prior to hiring. This includes completing Form I-9 and examining an assortment of identification documents that could establish such eligibility.
Over the years, this step has become a human resources routine in addition to processing other kinds of employee benefits. Employers who fails to document their compliance with this legal requirement are subject to a civil penalty or criminal prosecution, which was rare prior to 2007.
Recently, the U.S. Immigration and Custom Enforcement, commonly known as ICE, have conducted a number of high-profile worksite raids that led to a large number of arrests of undocumented workers. Employers, i.e., owners and/or supervisors, who knowingly hired undocumented workers in violation of tax and labor laws, were prosecuted on criminal grounds.
Unfortunately, most employers lack the expertise to verify the identification documents provided by the workers. To address this deficiency, ICE launched the E-verify system under the Bush Administration. E-verify were designed to provide employers the means to tap into the federal database to verify the authenticity of the legal document provided by the job seeker.
At the initial stage, the system exhibited numerous bugs. For example, it routinely confused a native-born citizen for an undocumented worker. There was also opposition from interests groups, but it managed to obtain extended funding from the Congress over the course of the last few years.
The Obama Administration has been vague about E-verify’s future. It reversed a controversial Bush policy to require federal contractors to enroll in the program. At this moment, the E-verify’s enrollment is on voluntary basis. The reality is that the high-tech system already cost millions of federal funding and there seems no other better option. It is likely that E-verify is here to stay. It may be modified in any future comprehensive immigration reforms to satisfy the need to show gains in immigration enforcement. Employers, however, should consult attorneys on certain legal consequences upon enrollment.
New York City immigration attorneys at Bretz & Coven LLP frequently counsel employers, business owners and human resource administrators on issues of progressive immigration compliance, especially relating to Form I-9. It is our mission to guide the business community with the ever-changing immigration law in the United States.