Spurred by reports that the E-Verify system has glaring holes (see ), lawmakers are looking at bills that would require all workers to produce ID cards that verify eligibility to work in the United States. The cards would have photo IDs and some sort of biometric info, such as a fingerprint.

Some particulars of the bill:

• People currently employed wouldn’t be required to obtain a card unless they switch jobs.
• Requirements would start with designated industries  that rely heavily on illegal immigrants in their work force.
• Enforcement eventually would be phased in for all worker in all industries.

But it would eventually reach tens of millions of Americans, including citizens and immigrants, who are holding jobs legally.

What chance does such a bill have to become law? Congress is hearing a bunch of complaints that could become insurmountable obstacles:

• Cost and inconvenience. The U.S. Chamber of Commerce has raised concerns about the costs to employers and potential difficulty checking the biometrics. Card scanners would cost employers between $700 and $800. The bill’s proponents say small employers could be exempt from purchasing scanners and instead send applicants to government offices.
• The “creepy factor.” Getting Americans to latch on to the idea of a scannable ID card is a tough sell. Privacy advocates won’t buy in.
• Amnesty. Some in Congress want to tie approval of a card system to amnesty for illegal workers, who would be required to turn themselves in an obtain an ID card. The word “amnesty” tends to lead to a loss of support for any type of immigration bill.

Loss of privacy is also a primary concern of those who fear the card will develop into a national identification system able to track Americans.

“We’re not only talking about fingerprinting every American, treating ordinary Americans like criminals in order to work. We’re also talking about a card that would quickly spread from work to voting to travel to pretty much every aspect of American life that requires identification,” said Chris Calabrese, legislative counsel for the American Civil Liberties Union.

At the end of July, a bipartisan group in the House and Senate reintroduced the Secure America through Verification and Enforcement (SAVE) Act, a bill that would ramp up efforts to fight illegal immigration.

Most notably, it would make E-Verify mandatory for all employers. The requirement would be phased in over a four-year period, starting with federal agencies, then federal contractors. Businesses with more than 250 employees would be next, followed by everyone else.

Also, the bill would increase border security and funnel more resources into prosecuting employers that hire illegals.

Does the SAVE Act have a chance to pass? A nearly identical bill was introduced two years ago but voted down. And given that the E-Verify requirement for federal contractors alone has been pushed back several times, an across-the-board mandate seems like it would be a long shot at this point.

But we’ll keep you posted as the story develops.

Help with immigration laws.

The Department of Homeland Security (DHS) recently launched its own YouTube channel to broadcast news and information to the public, including information on immigration regs that affect employers.

DHS says it will use the site to publish videos of speeches, events, public service announcements and other items.

The agency also recently reorganized its Web site to highlight its five main objectives: counterterrorism, border security, enforcement of immigration laws, disaster preparedness and DHS unification.

The federal government’s cracking down on I-9 recordkeeping, with a big nationwide audit underway and more investigations likely to come soon.

Earlier this month, U.S. Immigration and Customs Enforcement (ICE) announced it was checking the I-9 records of more than 650 employers. The effort is part of the agency’s new plan to give employers greater responsibility in the fight against illegal immigration.

ICE described the audits as a “first step,” meaning more rounds of inspections are probably coming. Here’s what HR needs to know:

1. Who’s affected?

First off, who can be audited? The answer: anyone. ICE said the companies in the current investigation were chosen based on leads and other information obtained through investigations. Experts say certain industries, such as construction, manufacturing, hotels and restaurants, are being watched more closely than others.

2. What happens?

ICE starts the process by sending the employer a notice of inspection (NOI) requesting certain documents. In addition to I-9 forms, ICE could request EINs, payroll records and correspondences with the Social Security Administration regarding no-match letters.

Companies have three days to send the documents. They can ask for a time extension in some cases, but response to the NOI still must be quick.

Once a notice arrives, attorneys recommend gathering the documents and conducting a self-audit before submission to correct simple mistakes.

If ICE isn’t satisfied, it may conduct an interview with the employer — though the company has the right to refer the agency to an attorney. Once everything’s reviewed, the company could receive a “Notice of Intent to Fine,” as well as a list of undocumented workers that must be terminated and a list of “suspect documents,” requiring the employer to complete new I-9s.

3. How much can it cost?

In most cases, fines for bad documentation range from $110 to $1,100 per form. ICE can also pursue criminal charges if it thinks the company willfully hired illegal workers.

4. What can HR do now?

The best option for employers, of course, is ensure the documentation is spotless before an audit occurs. Experts recommend conducting an internal audit annually.

Both internal and ICE audits will go more smoothly if unneeded forms are discarded. (The law requires companies to keep I-9s for three years after the employee is hired or one year after termination, whichever is later.) The first step of an audit should to compile a complete list of which forms should still be on file.

Instead of the “no match” regulation, DHS is promoting the use of its E-Verify system.

Here’s the chain of events that led to the department’s decision to forgo the “no match” rule in favor of E-Verify:

• In fall 2008, under the Bush administration, federal contractors were required to enroll in E-Verify and use it to verify existing employees working on federal projects.
• The U.S. Chamber of Commerce — along with several HR groups — challenged DHS’ E-Verify requirement.
• Parties in litigation reached an agreement on the effective start date of the rule, which is currently scheduled for September 8. This agreement negates the need for the “no-match” rule, according to DHS.
• If the agreement is accepted by the court, Congress will likely take action to amend the law: to make E-Verify mandated — rather than voluntary — for federal contractors.

The silver lining for federal contractors: It looks like you can probably ignore any no-match letters that might come straggling in. DHS won’t be wasting its efforts enforcing the old requirements that came with receiving no-match letters.

The dark, looming cloud for all employers: If Congress is willing to pass legislation mandating E-Verify for federal contractors, it may also decide to extend mandatory E-Verify enrollment for all employers.

Do you think Congress mandating E-Verify for federal contractors is the first step in requiring private-sector employers to use the system, too? Let us know in the comments section below.

Is E-Verify ready for prime time? Definitely not, says a group of lawmakers who believe the system may be less accurate than previously thought.

Use of the  electronic system, designed to allow employers to verify employment eligibility of new hires, is slated to become mandatory Sept. 8 for companies who do business with the federal government.

But there are rumblings in Congress over whether E-Verify’s going to work. Sens. Charles Schumer (D-NY) and John Cornyn (R-TX) recently pointed out what was called a “gaping hole” in the system: It fails to detect identity fraud.

E-Verify simply matches a Social Security number and a name. Schumer, Cornyn and other officials said there aren’t sufficient safeguards against an illegal immigrant using the name, SSN and address of an unwitting U.S. citizen.

Schumer suggested additional measures to enhance employee eligibility verification, including fingerprints.

What’s it all mean? The argument is the latest chapter in the ongoing saga of the Obama administration’s plan to make employers the spearhead of its immigration enforcement program.

You’ll recall that Immigrant and Customs Enforcement (ICE) recently announced plans to audit 650 employers across the country for I-9 compliance, a move that was seen as the first step in heightened enforcement efforts against hiring illegal workers. ICE said it would be seeking to charge violators criminally, a shift from the civil actions the feds have pursued in the past.

About 137,000 employers currently use the E-Verify service, according to federal figures.  More than 6.4 million queries have been received thus far this year. That number would multiply substantially if federal contractors are required to use the system.

Will the Sept. 8 adoption date stand? The deadline’s been postponed several times before. We’ll keep you posted.

ICE is the federal division that investigates companies for immigration worksite violations.

Earlier this week, ICE sent out more than 650 Notice of Inspections (NOIs) to companies across the country. When an employer receives an NOI, it is required to provide ICE with copies of all employees’ I-9 forms and related documentation — usually within three business days.

The audits are only the first step. Even if ICE doesn’t launch a criminal investigation, companies with I-9 violations may still face civil fines.

Here’s what employers who receive NOIs may want to bear in mind:

• Respond to ICE promptly, even if you have to request a time extension
• Maintain copies of all documents sent in response to the NOI
• Avoid any action that may be considered “tampering” with documentation, such as back-dating or correcting I-9 forms, and
• Consider an internal I-9 review process to examine your company’s procedures.

On April 30, DHS announced a major shift in the worksite enforcement program conducted by Immigration and Customs Enforcement (ICE): “Effective immediately, ICE will focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers.”

Translation: The agency is shifting its approach from catching unauthorized workers to catching the people who hire unauthorized workers.

The cold facts:

• ICE officers will obtain indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney’s Office  to prosecute the targeted employer before arresting employees for civil immigration violations at a worksite.
• ICE will look for evidence of the mistreatment of workers, along with evidence of trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering, and other such criminal conduct.

Enforcement of immigration law was already a high priority for the federal government in recent years. Last year, 51% of all federal prosecutions were immigration cases. There were 6,000 arrests relating to worksite enforcement, but only 135 were of employers.

All that’s about to change, and ICE has noted that prosecution can extend to owners, managers and supervisors.

What can an honest HR manager and employer do? Just make sure your documentation, such as I-9s, is complete and up to date. And double-check that your hiring practices are in compliance with federal laws.

Among her comments: “You have to deal with illegal immigration from the demand side … with what is drawing people across the border, and that is a job.”

Those comments, combined with Napolitano’s record — as governor, she signed into law Arizona’s employer-sanctions bill — could signal the direction DHS will take in stopping illegal immigration and the hiring of undocumented workers.

She also mentioned that, under her, DHS would take a look at reviving the controversial Real ID program, which called for national standards for state driver’s licenses, providing another document employers could use to verify eligibility for employment.

Stewart A. Baker, assistant secretary for policy at the Department of Homeland Security, said the numbers tell the story and bear out his charge that employers are getting off too easy:

• In the first nine months of fiscal year 2008, federal agents made 937 criminal arrests at U.S. workplaces, more than 10 times as many as the 72 they arrested five years ago. That’s the good news. 
• But out of all those arrests – many made during high-profile raids on companies – only 99 were company officials, a minor increase from the total of 93 in fiscal year 2007. 

The conclusion: The laws are structured to allow the government to hammer illegal-immigrant employees but not those who employ them.

A prime example of the enforcement disparity came  May 12 when federal agents swept into a meatpacking plant in Postville, Iowa. They arrested 389 illegal workers; 270 were convicted within days in expedited court proceedings, and and many were sentenced to five months in prison, mostly on criminal document-fraud charges.

However, only two company officials were arrested, the firm remains in business.