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Immigration reform: Changes for employers?

By Allison Dembeck, Ceridian manager of government relations, and Anthony Hinojosa, Ceridian government relations assistant

Immigration reform is emerging as one of the top 2006 agenda items for both Congress and the administration, which means potentially big changes for employers.

The House of Representatives voted on the legislation in December 2005, with the plan to introduce additional measures in 2006. While the Senate hasn't voted on an immigration bill, it introduced several new initiatives and plans to work on a large reform bill throughout March 2006. The business community has made it clear that to be successful reform must be comprehensive, meaning not only tighter border security, but also the creation of a guest worker program and the implementation of a non-burdensome electronic employee verification system.

Electronic employee verification and guest worker programs
Electronic employee verification may be the wave of the future for human resource departments, but there are still many questions about how the program will work.

The House bill, the Border Protection, Antiterrorism and Illegal Immigration Control Act of 2005 (HR 4427), which was introduced by House Judiciary Committee Chairman James Sensenbrenner (R-WI) and was passed by the chamber in mid-December, is an enforcement-only bill that creates the Basic Employer Verification Program (BEVP). To ensure a rapid vote on the legislation, the bill didn't include a guest worker program. However, Congressman Sensenbrenner said that the Judiciary Committee would examine guest worker program options in 2006.

The Comprehensive Enforcement and Immigration Reform Act of 2005 (S 1033/HR 2330), which was introduced by Senators John McCain (R-AZ) and Edward Kennedy (D-MA) in the Senate and by Congressmen Jim Kolbe (R-AZ), Jeff Flake (R-AZ) and Luis Gutierrez (D-IL) in the House, creates the New Employment Eligibility Confirmation System (NEECS). The bill also creates H-5A and H-5B visas as an attempt to form a guest worker program. The program would require an employment offer and would exclude anyone who is already eligible for the H-1B, H-2A, L, O, P and R visas. Current undocumented workers could also apply for the new H-5B visas.

In addition to HR 4427 and S 1033/HR 2330, Senator Chuck Hagel (R-NE) introduced four immigration reform bills (S 1916-1919), including the Employment Verification Act of 2005 (S 1917), which specifically addresses employment verification. Another of Senator Hagel's bills creates a guest worker program by creating an H-2B class that would accommodate 100,000 seasonal workers per year and an H-2C visa for year-round workers that would be capped at 250,000 workers per year. Both the H-2B and H-2C status would be open to all applicants who have an employment offer.

How the verification programs work
Congressman Sensenbrenner's bill creates a BEVP that would use Department of Homeland Security (DHS), Social Security Administration (SSA) and the former Immigration and Naturalization Service (INS) databases to verify a prospective new hire's eligibility to work. To use the BEVP, employers would register online and assign specific users, all of who have to sign forms accepting that the program would be used after the individual is offered the position and not for pre-employment screening. Once the registration is complete, all users would be required to complete an online tutorial, which explains each aspect of the BEVP.

Once the initial enrollment and training is complete, employers would be required to use the system to verify work eligibility for all new hires immediately and for their entire workforce within six years. The employee's name, Social Security number, date of birth, hire date and citizenship status or I-94 number would be submitted over the Internet and be checked against the database for hiring eligibility. Within seven to 10 seconds one of three responses - confirmation, nonconfirmation or tentative nonconfirmation - is sent back to the employer. A confirmation means that the individual is eligible for employment, a nonconfirmation means they're not eligible, and a tentative nonconfirmation will require federal government employees to review the request by hand. It is still unclear how much time will lapse between when the tentative nonconfirmation response is sent and when the government will follow-up with the employer.

There are some important differences between the HR 4427's BEVP and S 1033/HR 2330's NEECS. The NEECS would still require employers to input employment and personal information, but the information would be checked against the SSA database for verification. The SSA would then be responsible for identifying incorrect, false or expired Social Security numbers and remove them from the system within one year of the initiation of the program.

Employer concerns
There are many concerns surrounding the various verification programs, especially because they transfer the responsibility for monitoring immigration from the government to employers. In addition, the programs require that employee names be entered and submitted individually, so there is no accommodation for large employers who often bring on hundreds of new employees at a time. There is also the concern that the BEVP will cost an estimated $12 billion annually, a cost that would be paid by employers.

While there are more than six prominent Senate bills and four prominent House bills addressing immigration reform, it's likely that more will be introduced over the next several months. Senate Majority Leader Bill Frist (R-TN) indicated that he is currently drafting a bill, although it is unlikely that it will be comprehensive.

Senate Judiciary Chairman Arlen Specter (R-PA) has scheduled three dates in March to "mark-up" his immigration bill. It's expected that Senator Specter's bill will be a combination of the already existing immigration bills and will be the final bill the Senate votes on. However, since conservatives and business leaders have different opinions on what a comprehensive bill should include, Senator Specter has the difficult task of creating balance.

In the meantime, expect Congress to continue to address immigration issues and comprehensive reform to be one of the main pieces of legislation in 2006.