What bipartisan group’s immigration reform proposal means for employers

by Tammy Binford

A bipartisan effort to reform U.S. immigration policy includes what the proposal’s authors say is a plan to “create an effective employment verification system” as well as a way to “establish an improved process for admitting future workers to serve our nation’s workforce needs, while simultaneously protecting all workers.”

Eight U.S. senators—Republicans John McCain, Marco Rubio, Lindsey Graham, and Jeff Flake, along with Democrats Charles Schumer, Richard Durbin, Robert Menendez, and Michael Bennet—are pushing the plan, which also addresses border security and a pathway to citizenship for unauthorized immigrants already living in the United States.

“Our proposal will create an effective employment verification system which prevents identity theft and ends the hiring of future unauthorized workers,” the senators’ statement says. The senators also note that employers that “knowingly hire unauthorized workers must face stiff fines and criminal penalties for egregious offenses.”

The plan calls for workers to demonstrate legal status through “non-forgeable electronic means.” In addition, the plan says the verification system “will be crafted with procedural safeguards to protect American workers, prevent identity theft, and provide due process protections.”

In addition to employment verification, the plan addresses admitting new workers. The senators say their proposal “will provide businesses with the ability to hire lower-skilled workers in a timely manner when Americans are unavailable or unwilling to fill those jobs.”

According to the proposal, the United States must improve its ability to attract and keep highly skilled workers from around the world. “As such, our immigration proposal will award a green card to immigrants who have received a Ph.D or master’s degree in science, technology, engineering, or math from an American university. It makes no sense to educate the world’s future innovators and entrepreneurs only to ultimately force them to leave our country at the moment they are most able to contribute to our economy.”

Meaning for employers

Debbie Clephane, a shareholder in the immigration department at Vercruysse Murray & Calzone in Bingham Farms, Michigan, says the reference to an employment verification system may mean expansion of the E-Verify program. “At present, E-Verify is only mandatory for certain employers, but the U.S. government certainly encourages all employers to participate,” she says. “It is possible that E-Verify may become mandatory under the new legislation as part of the continuing emphasis to ensure that employers take responsibility to ensure a legal workforce.”

According to Clephane, “Congress may throw a bone to U.S. employers who utilize visas” for highly skilled workers by increasing the number of H-1B visas in circulation, either on a permanent or temporary basis. “It would also come as no surprise if the legislation encouraged immigrant entrepreneurial efforts,” she says.

Christine Mehfoud, senior counsel at McGuireWoods in Richmond, Virginia, says she finds it interesting that the proposal doesn’t mention E-Verify by name. In fact, the senators’ statement says a verification system is to be crafted, which might indicate they have a brand new system in mind. She says most employers would prefer to work with the system already in place, even if it ends up being changed somewhat.

Some criticize E-Verify’s reliability, and another shortcoming is that it doesn’t address identity theft. “What I would like to see happen … is to continue to use E-Verify. Most of my clients find it user-friendly, but it doesn’t give you a picture that you can match with an employee across the desk,” Mehfoud says. In some cases it does, she says, but if it would provide driver’s license photos, that could help resolve the identity theft issue.

Mehfoud says it’s hard to know whether the current proposal will be implemented, “but it will go a long way to get the conversation started.”

Elaine Young, of the Kirton McConkie law firm in Salt Lake City, Utah, says one of the advantages employers may see if the plan is passed is that it would grant undocumented workers already in the United States a work permit while they wait to achieve full lawful immigration status.

“The ability of these individuals to get work permits at the front end of the immigration process would be a tremendous benefit for employers who have been trying to recruit in good faith for years and have wanted to hire qualified workers who haven’t had work authorization,” Young says.

Although there would be advantages to immigration reform, any reform plan will present problems for employers, and employment verification is one of them. “On the one hand,” Young says, “many employers would like an easy way to verify someone’s work eligibility, and the government’s current employment status verification system, E-Verify, can be a great tool. But any employer who has used E-Verify knows that it still has to work out some significant kinks, especially in the communication between the Department of Homeland Security [DHS] and the Social Security Administration [SSA] during the verification process.”

If E-Verify becomes mandatory, Young says, employers would experience a learning curve and administrative delays. Also, dealing with E-Verify wouldn’t be the only problem. “We are already in a strong enforcement environment when it comes to workplace immigration, with the number of I-9 audits continually on the rise,” she says. “This proposal emphasizes enforcement of immigration laws, so employers should continue to perform I-9 self-audits.”

Debbie Clephane is a frequent contributor to Michigan Employment Law Letter, Christine Mehfoud has written about immigration issues for Federal Employment Law Insider, and Elaine Young puts together a monthly “Immigration Alert” column for Utah Employment Law Letter.