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Bush
Administration Outlines Stepping Up Federal Immigration
Enforcement
The Bush administration recently introduced plans to revise
and subsequently stiffen worksite enforcement rules to catch
and punish employers who knowingly hire undocumented
immigrants.
During a press conference in late February, U.S Attorney
General Michael Mukasey and Homeland Security Secretary
Michael Chertoff introduced several initiatives design to
stiffen federal immigration laws. They implicated the
administration has acted in response to Congress failing to
pass Comprehensive Immigration Reform.
1) Federal fines on employers violating federal immigration
laws will increase by nearly 25 percent. The change in fines
will include a maximum civil penalty of $16,000 for multiple
violations – an increase of $5,000. The Department of
Homeland Security (DHS) will be releasing a revised set of
rules for employers that receive employee “No Match” letters
from Social Security Administration (SSA). The regulations
set in August of 2007 have been blocked by an injunction
issued by a federal judge stating that the DHS failed to
follow procedures required by the Regulatory Flexibility Act
(RFA). After conducting an RFA analysis, the department
designed the recent revisions to address issues raised by
the court.
2) Expanding the federal government’s electronic employment
verification system, E-Verify, is another piece of the
overall enhancements. The government is leading by example
instituting a regulation requiring federal contractors to
participate in E-Verify. The state of Arizona also enacted a
law requiring all employers to use the system; Colorado,
Georgia and Minnesota also all have legislation forcing some
companies to utilize E-Verify. With 53,000 employers on
board the program has more than doubled in the past year,
which is a promising sign that companies are ready to comply
with immigration laws.
Despite the rapid growth the program is meeting objections
from employer and human resources-related groups, citing the
program has a high margin of error due to its reliance on
the SSA’s database. The state of Illinois passed legislation
forbidding employers to use the system until the accuracy
issue is resolved.
The Implications of Arizona’s New Approach on
Immigration
The Legal Arizona Workers Act took effect
throughout the state on Jan. 1, 2008. The law, which is
intended to help the state crackdown on employers who
knowingly hire undocumented workers, was passed in response
to Congress failing to enact Comprehensive Immigration
Reform last summer.
The legislation calls for strict punishment of such
employers by suspending their business license for up to ten
days. If a second offense is committed, the company’s
business license will be revoked. The act even asks citizens
suspect of a business employing an undocumented worker to
report the company to a sheriff or an attorney. The severity
of this decree will have a significant impact on companies
throughout Arizona and may indicate changes to come for
states across the country.
Immigrants settling in Arizona have been critical for
filling positions that previously remained vacant. The
University of Arizona released a study in October 2007,
stating that more than 10 percent of the state’s workforce
is made of non-U.S. citizens. Agricultural, construction and
service industries rely heavily on foreign workers and the
impact of this legislation on these industries will likely
yield economic repercussions for the rest of the state.
Immigrant workers without documentation will be forced to
leave to avoid deportation; while those with documentation
may relocate in fear of discrimination. Employers across the
state are facing workforce disruptions, but the most
dramatic may fall in the agricultural industry. The lack of
a consistent labor force will directly impact consumers as
farm owners struggle to maintain operations.
Employee verification is a critical step when hiring foreign
workers. Employers need to consider the best plan to verify
their workforce and manage immigration processing as many
states may follow suit by passing laws align with Arizona’s
new legislation.
H-2B Visa Cap Poses Grim Future for Seasonal Business Owners
Employers filing H-2B petitions are
encountering increased constraints as congressional events
have transformed the landscape of the H-2B process. These
include stricter limits on the number of temporary visas
available and a failure to provide a new source of workers
for seasonal business owners. Many employers are facing the
challenge of maintaining their operations and their
full-time employee base without the critical short-time
contribution provided by foreign workers.
The H-2B visa applies to temporary, non-agricultural workers
and is issued for one year with two one-year extensions
allowed. Sixty-six thousand visas are reserved for this
category each year, with the stipulation that U.S. employers
demonstrate that the need for the labor is temporary. It can
be seasonal, tied to peak-load demands, or even a one-time
occurrence. H-2B visas are a key staffing option for many
industries including landscaping, seasonal hospitality, and
seasonal construction, and are also critical at peak times
in manufacturing, food packaging, and fisheries.
Congress introduced the “Save Our Small and Seasonal
Business Act of 2005” as an amendment to the Emergency
Supplemental Appropriations bill. President Bush signed the
act in May 2005 exempting temporary seasonal workers who had
participated in the H-2B visa program in one of the three
previous years from counting against the cap. In essence, if
a worker had been counted under the cap during any of the
three preceding years, and had followed all applicable
rules, they would be eligible for the exemption. These
employees were not counted within the 66,000 allocated
visas. This resulted in the availability of more H-2B visas
so that employers could ensure they had the necessary staff
to maintain operations during peak periods.
This legislation delivered significant benefits to both H-2B
workers and the American employers dependent on seasonal
foreign labor. By ensuring their foreign workforce would be
able to return to work, employers did not have to question
if they would have the minimum workforce available to
maintain their operations. The exemption helped 51,000
returning workers receive H-2B visa in 2006, according to
the State Department.
Congress chose not to reauthorize or extend the “returning
worker” provisions in September 2007 and the exemption
expired on September 30 of that year. Today, returning
workers are no longer cap immune resulting in a negative
impact on seasonal employers who are now facing mounting
uncertainty regarding how they staff their operations in the
coming months.
Workers who had consistently returned for their seasonal
employment are unclear about their ability to work in the
U.S.; the 66,000 available does not provide sufficient
opportunities for these workers to return.
The U.S. Citizen and Immigration Services (USCIS) announced
on January 3, 2008, that they had reached the H-2B cap for
Fiscal Year 2008. While they will continue to process
extensions for current H-2B workers in the U.S., no new
H-2Bs will be issued for the fiscal year.
As a result, many small businesses that incorporate foreign
workers to augment their American workforce are struggling
to maintain productivity levels and are facing an uncertain
future. The H-2B visa provided a legal alternative for these
employers to fill gaps in their workforce. With the removal
of this option, many face a looming business forecast.
Operations that are able to withstand the legislation may
experience a steep decline in business; many will be forced
to close without the help of foreign workers, putting
American jobs at risk as well.
Ongoing efforts are currently being made to further extend
the returning worker provisions, including a pending
stand-alone bill that would extend the returning worker
exemption through 2012. However, some want to see the bill
wrapped into the larger discussion of Comprehensive
Immigration Reform.
Those in favor of the extension are asking H-2B employers to
urge politicians to take the necessary steps now to revive
the exemption, allowing a larger and stronger H-2B labor
force to support small American business.
Undocumented Workers in America: Country Sitting
on a Time Bomb
With last summer’s
Congressional debates regarding the introduction of a
Comprehensive Immigration Reform Bill, the implications for
our nation’s workforce became evident. As a result, some
corporations have begun preparations to handle the
significant compliance and regulatory issues they will face
if and when legislation is passed. As demonstrated by last
fall’s introduction of the “No Match” program by the
Department of Homeland Security (DHS), revisions to these
processes could create significant obstacles for the 7.2
million undocumented workers that account for 5 percent of
the U.S. workforce, according to the highly regarded
Washington, D.C.-based Pew Hispanic Center. These
undocumented workers make up 25 percent of all agricultural
jobs, 17 percent of office and house cleaning positions, 14
percent of construction jobs and 12 percent of the jobs in
food preparation.
Why is understanding Immigration Reform important to
employers?
The uproar caused by the introduction of the “No Match”
program across industries highlights the wide-ranging impact
of Comprehensive Immigration Reform legislation.
1. Labor force disruption – To the extent that a company
employs any undocumented workers, there is potential for
disruption in the workforce. A company with a labor force of
50,000 and just 2% undocumented workers will have an issue
with 1000 workers, which can be substantial.
2. Increased HR staff – New regulations equate to increased
employer compliance, resulting in additional HR
responsibilities.
3. Increased risk/sanctions – Increased fines and penalties
relating to non-compliance, along with reputation risk for
the organization.
4. Increased costs – Internal costs related to staffing and
other internal resources; external costs include potential
application fees, provider fees, etc.
Preparation and protection
New legislation will result in an urgent need on the part of
employers to review their internal hiring and screening
processes. Companies that employ a large number of
low-skilled workers will need to make extensive revisions to
their HR practices, resulting in the processing of a
substantial amount of documentation to ensure compliance. HR
departments must make a priority of reviewing these issues
to ensure a smooth transition to new processes and avoid
future problems.
Employers should advise employees to take certain measures
to prepare and protect their work status, including staying
informed on pending regulations and being cautious of those
trying to capitalize on the issue. By staying prepared for
the implications of reform measures, companies can minimize
the negative effects reform may have on their organization.
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