Over 1995 and 1996 the United States Congress has seen at least two attempts, one in the House, the other in the Senate, to make very substantial changes in the existing Immigration Law. The last major revision to the Immigration Law was with the Immigration Act of 1990. Obviously in the 1996 election year, there were attempts to “get tough” on immigrants, who are a readily available body of scapegoats. As Representatives and Senators postured, bickered, and argued, the Senate Bill, sponsored by Senator Alan Simpson floundered thanks in no small part to organized opposition by the National Association of Manufacturers and an allegiance of computer software and hardware companies. In the House, HR2202 sponsored by Representative Lamar Smith, was similarly stripped of most of its employment related restrictions. However, in a “back door” attempt to get some legislation passed in the current fiscal year, Congress “boot strapped” the “Illegal Immigration Reform and Immigrant Responsibility Act of 1996” (IIRIRA) to an appropriations bill necessary to continue funding the federal government. Consequently, the appropriations provisions together with the IIRIRA was signed into law by President Clinton on September 30, 1996.
The following article is an exposition of the various employment related provisions of the IIRIRA as well as an overview of any changes in the current H-1B temporary professional worker visa category or the permanently birth certification route to obtain a “green card” for any alien employees.
Illegal Immigration Reform and Immigrant Responsibility Act Of 1996
Title IV of the act relates to “enforcement of restrictions against employment”. This process may be summarized as follows:
The Immigration and Naturalization Service (INS) is going to implement three pilot programs in five out of the seven states with the highest estimated population of undocumented workers, with the voluntary participation in these programs by employers. Three (3) types of programs are envisioned – first, basic programs, second, the citizenship attestation program, and third, the machine readable document program. Finally, the INS will be developing a pilot confirmation program where confirmation of the employees’ eligibility for employment will be confirmed either via telephone or other electronic media with a secondary process for backup of the verification. This last program for pilot confirmation is to be jointly developed by the INS and the Social Security Administration.
It is possible for employers under the jurisdiction of the Cleveland District of the INS to participate in an employment verification pilot (EVP) program. The employer would enter into a memorandum of understanding (MOU) with the INS. Thereafter, the INS will provide the employer with software, an access code, a user identification code and a password. Employers will be provided with either of two (2) pieces of information – namely, that employment authorization is confirmed or that further searches are needed to verify the employee’s eligibility. This may be worth while for employers hiring large numbers of temporary personnel on a regular basis.
Verification of employment eligibility came about as a result of IRCA (Immigration Reform and Control Act of 1986). One of the provisions of IRCA is that an employer must fill out the form I-9 for all new hires on or after November 1, 1986. Even if an employer is found to be a genuine U.S. worker, but the employer has failed to fill out the I-9 as required, the employer is in violation of IRCA. Such violations attract civil penalties (ie, fines). One beneficial aspect of the IIRIRA is that employers will face no liability for technical violations of paperwork requirements where they have made a good faith attempt to comply with IRCA. They will be allowed ten days to correct paperwork violations. However, these exceptions will not apply if the employer is found to be a “pattern and practice” violator of IRCA. A pattern and practice violator means the employer has made it a regular course of dealing to hire or fail to document new hires, especially those which the employer has reason to know are undocumented aliens or may be presenting fake documents.
There is also an effort being made to reduce the number of documents that a worker may show in order to prove employment eligibility. However, this “paperwork reduction” has been in the offing for quite some time with no appreciable reduction in documents required. On a more onerous note, Title I, subtitle C – “Interior Enforcement”, of the IIRIRA sets forth provisions for hundreds of additional personnel to be hired to enforce the provisions of the Immigration Act, investigation of undocumented workers, and other immigration violations.
In summary, the IIRIRA is a mixed bag for employers. On the one hand, it provides some relief from the burdens and requirements of IRCA. On the other, it opens the door to potentially higher scrutiny of employers thanks to increased enforcement. Only time will tell whether the IIRIRA is having the desired effect on reducing illegal immigration and unauthorized employment.
H-1B’S and Permanent Labor Certification
Thanks to the withdrawal of the employment related provisions in the legislation pending in Congress, the H-1B process has been left largely untouched. This, coupled with the fact that the National Association of Manufacturers won a significant Federal Court victory against the Department of Labor’s regulations regarding prevailing wages and attestations for H-1B employees indicates that at least for now, the H-1B process is at approximately the same point as it was about three years ago, when the adaptation requirements were introduced.
Labor certification is a different case. In late September 1996, the U.S. Department of Labor issued a new set of guidelines (in actuality) read “requirements” to the State Employment Service Agencies (SESA’s). The interesting aspect of these requirements is that they were promulgated without any of the notice, comment and lead times required by law in the enactment of any federal regulations. Thus, the constitutionality of these new DOL regulations remains to be seen.
Regardless, the most critical point of the new DOL requirement is that for a permanent labor certification application to go to recruitment – that is the placement of an advertisement soliciting U.S. workers for the position to be filled by the alien employee – such application must not have any “unduly restrictive” requirements. What is “unduly restrictive” is the sole discretion of the Department of Labor and the SESA. Therefore, employers commencing labor certifications for employees on or after October 1, 1996 will have to come up with creative ways to avoid falling prey to this extremely burdensome requirement.
Look for some substantial changes in the I-9 form and documentation requirements some time in the not too distant future. Also, employers should continue to remember that IRCA and the form I-9 requirements continue to apply to all new hires hired on or after November 1, 1986. Along with the increased funding for immigration violators comes the possibility of increased scrutiny by the INS and/or other federal agencies.
In the area of professional employment, there appears little change in the H-1B process. However, there is a substantial change in the labor certification process at least at the present time. The situation will have to be closely monitored for any employer who is planning on filing a labor certification in the near future.