2006 Immigration Legislation: Déjà Vu --The Immigration Reform And Control Act Of 1986
This article will examine the new, hotly debated legislation and compare it against IRCA, which provided legalization for undocumenteds and imposed penalties on employers who knowingly hire unauthorized workers. It will also explain how Immigration and Customs Enforcement’s (ICE) outreach at the worksite has already changed -- absent the passage of any new laws. Lastly, it will provide some pointers on how to ensure compliance.
Some things don’t change: The perception that the nation’s immigration woes are the fault of the business community and harsher penalties must be imposed on employers as a solution to the country’s immigration woes is the common denominator of the 1986 and now the 2006 legislation.
While thankful for the 1986 legalization provisions, many employers wondered if the trade-off – legalization for employer sanctions – was worth it. If the new legislation passes congressional muster in its current form, few employers will think that the new guest worker provisions are an acceptable trade for the enhanced civil and criminal penalties contained in both the current House (HR4437) and Senate (2454) bills. However, employer excitement over the possibility of legalizing one’s workforce and ignorance about the impact of the legislation has clouded the perception of many.
What are the major employer-related features of the 2006 proposed legislation?
For the first ten years after the passage of IRCA, initial enforcement efforts focused on whether the employer completed a perfect I-9, and hefty fines were levied for minor imperfections regardless of the legal status of the workers. After former Congressman Sonny Bono sponsored a revision to the law, enacted in 1996, that required immigration inspectors to issue deficiency notices for I-9 irregularities with a ten day opportunity to cure the deficiency, enforcement plummeted. In fact, the Department of Homeland Security, almost ten years after the Bono provisions were enacted, still has not promulgated any regulations nor delivered on its promised revised I-9 form. Thus, over the last ten years we’ve witnessed a period of lessened enforcement except for the focus since 2001 on critical infrastructure employment sites, which generally net not the targeted terrorists but Mexican laborers.
However, enforcement strategies are changing. Whether this legislation with its harsh criminal provisions passes this year or in the future, the face of immigration enforcement will be marked by increased criminal, not civil, enforcement. There really is no need for the passage of new criminal penalties as there are already a multitude of criminal provisions that an employer can be indicted for related to the employment of unauthorized aliens, including making a false attestation on the I-9; misuse of the social security system; harboring or shielding aliens; accepting documents known to be false; and pattern and practice of knowingly hiring or continuing the employment of unauthorized workers.
Today, an I-9 audit can rapidly become a vehicle for a criminal indictment. While ICE claims that criminal prosecutions are only reserved for egregious offenders who often also run afoul of minimum wage and other labor violations, recent investigations have not focused on the traditional “sweat shop;” now, attention is on the large, substantial employer -- the Tyson’s Food or Wal-Marts of America.
What can an employer do today to increase corporate compliance with immigration laws?
In conclusion, as in 1986 with the passage of IRCA, once again the “carrot” of legalization for workers in order to wipe the slate clean versus the “club” of enhanced enforcement is on the table. While the numerous guest worker provisions have been much in the limelight, the employer-impacted repercussions need serious study.Reprinted with permission from Josie Gonzalez.
Josie Gonzalez, Esq. is the managing attorney of Gonzalez & Harris, a Los Angeles based immigration law firm that represents employers in all aspects of immigration law. She has testified twice in Washington, D.C. regarding the impact of U.S. immigration laws on the business community, and is a frequent commentator on agency regulatory activities. She served for nearly ten years on AILA's Board of Governors; has contributed as Chair, Co-Chair & member of various national liaison committees; has authored numerous articles for legal and trade journals; and served as Editor-in Chief for the David Stanton Manual on Labor Certification (1998). In 1999, she was recognized by AILA for "Excellence in Advancing the Practice of Immigration Law". Ms. Gonzalez is a frequent guest speaker to many trade and business organizations including PIHRA, the California Restaurant Association, the Employers Group, and the Employer Advisory Council. Ms. Gonzalez has been selected by her peers for inclusion in the inaugural issue of Southern California Super Lawyers®, and for over 10 years in The Best Lawyers in America.
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