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States Line Up To Increase Employer Responsibility

by Diane Adams

Following landmark immigration legislation affecting employers in Colorado and Georgia, a host of other states have launched their own attempts at immigration control. The bills run the gamut from initiatives that are little more than an amen chorus for existing federal law, to those that attempt to mandate worker verification programs and impose stiff penalties against employers that hire illegal workers. Some more notable reform attempts involving employers are those in Utah, Arizona, Missouri and South Carolina. For many businesses, the question of how to meet the patchwork of demands these measures place on them is one fraught with opinion, but with few solid answers.

SB 348, the “Missouri Omnibus Immigration Act” sponsored by Kris Koster (R) and Tim Green (D), could rocket Missouri into the number one slot for radical immigration reform measures (a distinction currently held by the state of Colorado).  A senate committee is considering legislation that would require what amounts to mandatory participation in the currently voluntary DHS sponsored Basic Pilot program. Included in the Omnibus are also provisions making it illegal to deduct wages paid to illegal workers as business expenses, the potential for denying business licenses to companies that hire illegal aliens, and a measure that would authorize cities and counties within the state to manufacture their own immigration measures.

Arizona has introduced some bills that would echo Colorado’s new immigration laws, asking businesses to sign an affidavit swearing they do not hire illegal workers, as well as measures emphasizing the state’s expectation of employer compliance with federal law. The measures were approved by the House Government Committee with the intent to place some of them before voters.

A house committee in Utah has approved a bill, HB 156, which would require employers to verify new hires’ employment eligibility by accessing a federal database, presumably the DHS administered Basic Pilot program. The bill is reportedly intended to control identity theft perpetrated by illegal workers. Supporters acknowledge the limitations of the Basic Pilot program, which checks that given names and SSNs match but is not able to detect duplicate SSNs submitted by more than one applicant. Unfortunately, identity theft generally involves using a duplicate of an existing name and SSN and may be entirely undetectable using the proposed system.

South Carolina has a litany of immigration-related proposals abroad, including measures that would prohibit employers from claiming state tax deductions on wages paid to unauthorized workers and require companies to withhold 6% of wages for employees without tax id numbers, as well as mandating Basic Pilot for all employers. Mississippi has also introduced a bill that would mandate Basic Pilot for employers.

State immigration reform bills are facing stiff opposition from immigrant rights groups and from those who feel that immigration reform is a federal issue. Nevertheless, many of the state initiatives are moving forward, and indeed it seems likely that quite a few will become law.

As the hodgepodge of state immigration laws grows, so does the unease of employers. There is no clear path to compliance with many of these laws. “The charge of ‘knowingly hiring illegal workers’ is ambiguous, and lacks a clear pathway to safe harbor", said Immigration Attorney Elaine Morley, "Employers must walk a fine line between carefully examining a new hire’s legal documentation, and over-compliance which can lead to discrimination charges.” New legislation that varies employer responsibility from state to state and contains no clear procedure for employer compliance could make hiring in America a high wire act with no safety net in place.

About The Author

Diane Adams is a freelance writer specializing in immigration law that affects American employers. She is the editor of The Lookout Monitor, an online publication by Lookout Services, Inc.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.