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I-9 E-Verify Immigration Compliance

Senate's Immigration Reform Bill, Mandatory E-Verify and Increased Penalties for I-9 Form Violations; by Bruce Buchanan, Siskind Susser

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The "Border Security, Economic Opportunity, and Immigration Modernization Act" (SB 744) passed the Senate by a vote of 68 to 32 on June 27, 2013.  If it became law, how would this bill affect employers through E-Verify and penalties for I-9 form violations.


All employers would be required to utilize E-Verify, although the system would be gradually implemented. Within 90 days after the Act's enactment, federal agencies and federal contractors would be required to utilize E-Verify. One year after the Department of Homeland Security (DHS) publishes its implementing regulations, it may require employers involved in the country's "critical infrastructure" to use E-Verify. All other employers would be required to use E-Verify based on this schedule after publication of the regulations: (a) 2 years - employers with more than 5000 employees; (b) 3 years - employers with more than 500 workers; (c) 4 years - all other employers, including agricultural employers; and (d) 5 years - Indian tribes.  Moreover, an employer, who has been found to have violated the Act through the hiring of undocumented workers, may be required to implement E-Verify at an earlier date even if it is not scheduled to do so.


The penalties for immigration violations will greatly increase. The civil penalties for "knowingly hiring" unauthorized workers will increase from $375 - $3200 to $3,500 - $7,500 for each unauthorized alien, for the first offense; from $3,200 - $6,500 to $5,000 - $15,000 - second offense; and $4,300 - $16,000 to $10,000 - $25,000 - third or more offenses. Substantive or uncorrected technical violations will result in an increase of civil fines from $110 - $1100 for first offense/per violation to $500 - $2,000; from $550 - $1100 to $1000 - $4000 - second offense; and
$1,100 to $2,000 - $8,000 - third or more offenses.


Employers, who hire undocumented workers after their mandatory enrollment date in E-Verify, but fail to verify the employee in E-Verify, will be presumed to have knowingly hired an unauthorized worker.  The verification of a worker's authorization through E-Verify is evidence of an employer's good faith and is grounds to avoid liability, if an individual is later determined to be undocumented.  


The Senate bill adds additional time and appeals after receipt of a tentative non-confirmation (TNC). Individuals who wish to appeal a TNC will have 10 business days to contact the DHS or SSA.
Thereafter, the agency will normally have 10 business days to resolve the matter. The Senate bill adds an additional procedure to appeal a non-confirmation by filing an administrative appeal, then to an Administrative Law Judge and to the Circuit Court of Appeals. Currently, there is not any such procedure.  Employers would have a three-day grace period to re-verify existing workers upon expiration of the workers' employment authorization.  Currently, there is no grace period.


 

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