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Immigration legislation stalls: What's next?

By Rob Smith, Ceridian manager of Government Relations

Once again, it appears that the chances for passing a comprehensive immigration reform bill have slipped from Congress's grasp. On June 28, a fragile compromise that a bipartisan group of Senators and the White House formed over the past few months unraveled when the measure's proponents failed to gain the support necessary to bring the bill to the Senate floor for a vote.

Under Senate rules, senators are able to continue debate on a bill indefinitely and can even place a hold on legislation, preventing it from being considered by the full Senate. These tactics often come into play when the Senate takes up controversial legislation, and comprehensive immigration reform certainly falls into that category. The Senate rules also provide a mechanism called "cloture" that breaks off debate and brings the bill to a final "yes" or "no" vote. However, the coalition fell far short of the 60 votes it needed to invoke cloture in a vote that failed 46 to 53. Although the Senate Democratic majority still has the option to bring the same bill up again before this session of Congress ends in 2008, this is unlikely to happen.

Consensus again proves elusive
Congress has long struggled to develop a comprehensive solution to our nation's growing immigration problem. In 2005 and 2006, the House and the Senate passed immigration bills. But, largely due to election year politics, the Congressional leadership never took the next step of appointing members of a conference committee to hash out the differences between the two bills.

This most recent immigration legislation would have made several significant changes to our nation's policies regarding work visas, green cards and work eligibility, and it contained plans for a new guest-worker program as well as a "Pathway to Citizenship" for most illegal aliens. Also, and perhaps most significantly for compliance, it would have instituted a national mandatory Electronic Employment Verification System (EEVS) that all employers would have been required to use to verify their employees' work eligibility.

What happened?
Immigration is a large and many-faceted issue that touches nearly every portion of the political and social spectrum. And nearly every group, politician or pundit that followed the immigration debate found something not to like about the Senate legislation, which made for some strange bedfellows.

Conservatives sided with unions in opposing the guest-worker program for fear that it would undercut American jobs. Liberals and Hispanic advocacy groups opposed the mandatory EEVS program because it would prevent illegal aliens from holding jobs. Representatives of business sectors such as agriculture, whose workforces rely on unauthorized immigrant labor, also opposed the bill.

And even though the Senate Democratic leadership joined with President Bush to make immigration reform a cornerstone of their agendas, some Democrats opposed the bill to deny Bush this success, and Republicans fought against it to deny Democrats a major accomplishment they could tout in the 2008 elections.

In the end, these forces proved to be too much for the fragile compromise to bear. Much of President Bush's power and influence has been sapped by the Iraq war, and his approval ratings hover right around an abysmally low 30 percent. The immigration reform coalition would have needed strong presidential support to shepherd the bill through the difficult political environment, which Bush was unable to provide.

Employers in the crosshairs
Although the immigration issue appears to be off the table in Congress for the time being, employers still have much to be concerned about. For one, the federal government has steadily increased its efforts to crack down on employers who hire illegal workers, which is likely to accelerate. In 2004, the government issued only three "intent to fine" notices to employers nationwide for intentionally employing undocumented workers. Since then, immigration enforcement officials have devoted more resources to investigating illegal hiring and have chosen to shift away from administrative fees to criminal charges. These efforts led to 127 criminal convictions of employers last year.

This pressure won't go away. For example, it has become clear that the government believes employers need to do more than fill out an I-9 form to verify a new hire's work eligibility, because employers are only required to view each new hire's work documents, not verify them.

View, not verify
Since the I-9 requirement was implemented in 1986, our nation has seen an explosion in criminal document fraud. Improvements in technology allow many people to produce an illegal Social Security card, drivers license or other documentation that is accepted under the I-9. This leaves employers wide open to inadvertently hiring illegal workers.

While employers can take steps to shore up their I-9 filings by auditing their past forms and maintaining copies of the documents they view for I-9 purposes, it is still very easy for illegal workers to exploit the process since these documents are not verified.

The federal government has noted that this verification is key to successful immigration reform. Department of Homeland Security (DHS) Secretary Michael Chertoff recently stated that "the single most important thing we need is a mandatory employment verification system." Regardless of efforts to further secure our borders or hire additional immigration enforcement officers, as long as jobs are available, illegal aliens will continue to find ways into the United States.

Basic Pilot: Precursor to electronic verification?
Currently, employers have access to the Basic Pilot program, a free, voluntary electronic database system that compares new hires' I-9 information against Social Security (SSA) and DHS databases. Although Congress has been unable thus far to pass immigration legislation to mandate that employers use the system, employers should thoughtfully consider enrolling voluntarily.

The government will continue to ramp up its workplace enforcement efforts, which means it's almost certain that the number of employers prosecuted for work eligibility violations will continue to rise. Employers should also be aware that the DHS has proposed a rule that would make employers liable for "no match" letters they receive from the SSA regarding employees' whose payroll data does not match up with Social Security files.

Basic Pilot can solve both of these problems. While the system is not perfect, it provides employers with notification regarding a new hire's work eligibility nearly instantaneously over 90 percent of the time. And because the program automatically checks new hires' Social Security information against SSA databases, using it virtually eliminates "no match" letters.

Mandatory verification: Handwriting on the wall?
Washington insiders believe that employers will be required to use the Basic Pilot (or EEVS) system eventually, regardless of the prospects for a large comprehensive immigration bill. Jobs are at the very heart of the flow of illegal immigrants who enter the United States, and verifying employees' work eligibility appears to be the only way to stem that tide. Even if Congress doesn't act to mandate EEVS, many state governments are beginning to step in. Currently, 13 states require all public employers and employers who contract with the state and local governments to verify new hires through Basic Pilot, and more states are considering mandating Basic Pilot for all new hires. With over 1,200 immigration-related bills currently pending in state legislatures, employers should expect this trend to grow.

Employers would be well advised to get ahead of the curve by enrolling in Basic Pilot while it is still voluntary and free of charge. Businesses have the option of enrolling in a three-month trial period or they can choose to do a Basic Pilot "test run" at one location before deciding whether to implement the program throughout the company. It's not a perfect system, but from a legal and compliance standpoint, Basic Pilot might be one of the most useful tools available to employers.

When the U.S. Senate derailed comprehensive immigration reform in June, media coverage focused on issues that divided senators, namely the guest-worker program and the proposed citizenship pathway for illegal aliens. Lost in the fog of debate were two issues on which there was no disagreement: tougher border controls and mandatory electronic employment verification.

It's safe to say that the most contentious issues have been postponed until 2009 at the earliest. But employers should be prepared for the possibility that EEVS will reappear either in legislation or regulation. And like most compliance mandates, HR/Payroll professionals will wind up with the responsibility to make it happen in the real world.