In what may signal the end of the Bush Administration’s tough approach against U.S. employers on immigration matters, the Department of Homeland Security agreed to delay implementation of its federal contractor E-Verify regulation to February 20, 2008. The E-Verify rule that was scheduled to take effect January 15th ultimately would have required an estimated 168,000 federal contractors to register with and use DHS’ E-Verify system to verify the identity and employment authorization of their new hires and certain current employees. This E-Verify rule was viewed by DHS as a critical step to enhance employer compliance with immigration employee verification requirements and was a final cornerstone to mark its legacy of enhanced enforcement against employers in the battle to improve border security and the integrity of our nation’s immigration system.
Following Congress’ failure to pass comprehensive immigration reform, the Administration has stepped up enforcement activities against employers, possibly in the hope that it would spur compromise and further consideration of immigration reform. These efforts over the past two years have resulted in impressive Department of Homeland Security operations and results against employers to include:
· A record $20.7 million settlement against IFCO Systems regarding an ongoing criminal immigration worksite investigation.
· A 27 percent increase in worksite enforcement over the prior year.
· A record 5,100 employee arrests in worksite operations.
· A record 1,100 criminal arrests of employers and employees regarding worksite violations.
· Record employee arrests at single-site and multiple-site operations.
· A record 100,000 employers registered for E-Verify, some on account of DHS supported state legislation mandating registration.
These actions, particularly the elevation of historically civil worksite and employee verification violations to criminal violations, have drawn more attention to I-9 requirements and employee verification procedures. Despite its efforts, DHS remained under constant criticism over the estimated 12 million undocumented persons in the U.S. and the lack of adequate tools from the government to help employers screen their workforce.
The latest criticism of DHS’ immigration enforcement campaign is reflected in a lawsuit filed by the Chamber of Commerce against DHS to prevent implementation of the federal contractor E-Verify rule. Unlike DHS’ prior position of aggressively fighting similar lawsuits (for example, the ongoing litigation regarding the Social Security No-Match Rule, another immigration-related rule aimed at increasing employers’ burden to resolve employee social security number discrepancies), the Department agreed to postpone implementation until February 20, 2009. This will likely be the Obama Administration’s first major immigration policy decision and may shed light on the approach they will take on employer compliance.
It is unclear what the Obama Administration will do with the contractor E-Verify rule or the enforcement campaign against employers, but employer advocates hold promise that the new Administration will revisit E-Verify and the enforcement strategy. However, the tides may not change so dramatically. The picture surrounding DHS Secretary-nominee Governor Janet Napolitano is not clear. As Governor of Arizona, Janet Napolitano signed one of the most aggressive state laws mandating state businesses to use E-Verify and enhancing penalties against employers who knowingly hire undocumented workers. While the Bush Administration’s enforcement initiative against employers may be ending, what follows under Janet Napolitano and the Obama Administration remains to be seen. n what may signal the end of the Bush Administration’s tough approach against U.S. employers on immigration matters, the Department of Homeland Security agreed to delay implementation of its federal contractor E-Verify regulation to February 20, 2008. The E-Verify rule that was scheduled to take effect January 15th ultimately would have required an estimated 168,000 federal contractors to register with and use DHS’ E-Verify system to verify the identity and employment authorization of their new hires and certain current employees. This E-Verify rule was viewed by DHS as a critical step to enhance employer compliance with immigration employee verification requirements and was a final cornerstone to mark its legacy of enhanced enforcement against employers in the battle to improve border security and the integrity of our nation’s immigration system.
