Special Report: The letter of the law

If you employ immigrants and think some of them might have shown you high-quality fake documents during the hiring process, there’s a good chance you’re right. The prolific fraudulent ID industry in the United States can produce authentic-looking driver’s licenses, green cards and Social Security cards for less than $100, thanks to high-tech printers and digital scanners. At the same time, the U.S. Immigration and Customs Enforcement agency is stepping up its efforts at work sites. It made 88 percent more arrests this year compared with last year, and won 127 criminal convictions in 2005, up from 46 in 2004. Convicted employers can face jail time in addition to stiff fines.

Using the current system for determining a worker’s immigration or citizenship status – basically, the I-9 form – there’s no way for you to know for sure whether the person is in the United States legally. But despite this uncertainty, keeping your hiring practices above board isn’t difficult. If you properly follow the I-9 process, you have nothing to worry about, says Christopher Bentley, a spokesman for the U.S. Citizenship and Immigration Services branch of the Department of Homeland Security. “We realize employers aren’t documents experts,” he says.

On an employee’s first day of work, you and the employee should complete the United States Customs and Immigration Service Employment Eligibility Verification, or I-9, form. Note that you can’t fill in this form during the interview process or after the employee has begun working. I-9 form requires the employee to present two of 29 documents the government accepts as proof of eligibility to work in the United States. Immigrants will likely produce a green card, officially titled the Alien Registration Receipt Card, a Temporary Resident Card, an Employment Authorization Card or an Employment Authorization Document. If these documents are not obviously fraudulent – cards that appear to be photocopies or Social Security numbers with more than nine digits, for instance – you can hire the individual without fear of reprisal. And, in fact, you must hire the person.

If you deny someone a job because you suspect he is in the country illegally even though he has presented the required documents, you could face a lawsuit or find yourself in trouble with the Justice Department for violating the Equal Employment Opportunity Act. “Employers are kind of in a box right now,” says John Farner, director of legislative relations for the American Nursery & Landscape Association. “Following the letter of the law is really all you can do. We’re not suggesting policing your own work force.” Farner says ICE agents have told him they are targeting egregious employers – those who knowingly hire illegal aliens.

USCIS offers a free handbook with instructions on completing the I-9 form and information about identification documents. You can find it on the Internet at www.uscis.gov/graphics/lawsregs/handbook/hand_emp.pdf.

Basic Pilot
If you’d like the peace of mind of knowing the documents prospective employees show you are legitimate, the government provides a voluntary way to do this. It’s called the Basic Pilot Program, and a version of it could be mandatory for all employers soon.

To use Basic Pilot, you enter information from the I-9 form into an Internet program, which attempts to match that information with immigration and Social Security files, Bentley says. You get an “eligible to work” or “not eligible” reply in eight to 10 seconds.

In about 15 percent of cases the information is not robust enough to produce a clear-cut answer, Bentley says. In those cases, the system responds “tentatively not eligible,” and USCIS will pull files and attempt to make a determination within 10 days. The program also tells the employee what he can do to rectify the situation. This usually involves contacting the Department of Homeland Security or a local Social Security office. As an employer, you are required to keep the person on the payroll until USCIS tells you he is not eligible to work.

The rules might be changing
With the federal government scrutinizing illegal immigration and the role jobs play in luring the undocumented, sole reliance on the I-9 form could be a thing of the past. And, perhaps more importantly, the landscaping labor market could shrink considerably.

So far, Congress has admitted the United States has a complex immigration problem and spent the past year bickering over what to do about it. After the Senate and House of Representatives came up with two incongruous solutions, the only thing lawmakers could agree on before adjourning for this month’s elections is that a fence should be built at the Mexican border.

If immigration reform is left at border enforcement, the landscaping industry, which is already facing a labor shortage, will suffer even more, Farner says. “If we don’t have a comprehensive bill put in place, if we have an enforcement-only bill, it will put more pressure on the H2B program,” he says. “The noose around the neck of our industry will tighten and our problems will get worse down the road.” Landscape contractors heavily use the H2B visa program, Farner says, and the program’s annual cap of 66,000 visas is met every year. With fewer undocumented workers in the country, landscapers will be competing more with other sectors of the economy for those 66,000 visas.

Farner says his organization is in favor of stricter enforcement so long as it is paired with an expanded guest worker program that will let more immigrants into the country legally and allow them to stay as long as employers need them to work. H2B visas allow workers to stay in the United States one year, and can be extended to three years, but qualifying for an extension is difficult, Farner says. Pinpointing how many guest workers the landscaping industry needs is tough because it’s impossible to know how many current workers are using false documents, he says.

Last December, the U.S. House of Representatives approved a bill that focuses on border security and would make being in the United States illegally a felony. That bill prompted street protests throughout the country. The Senate approved a bill in May that would create a new guest worker program and a pathway to citizenship for some illegal aliens. Both bills contain provisions for a fence or wall at the U.S.-Mexico border.

The 109th Congress still has time to approve compromise legislation in a lame-duck session. With elections looming, members of Congress weren’t eager to tackle the politically charged immigration issue this summer. They held field hearings on the two separate bills rather than appointing members to a committee that would work out the differences between them. But Farner says the political pressures will be off legislators’ shoulders after the November 7 elections, and the American Nursery and Landscape Association is hopeful Congress will return to Washington and craft a bill that addresses multiple facets of the immigration problem.

The future of immigration reform
Several members of Congress say they will continue pushing for broad immigration reform. Senate Majority Leader Bill Frist, R-Tenn., has said comprehensive immigration reform must address border security first, not border security only. “A comprehensive approach to immigration reform recognizes that we must strengthen and modernize enforcement – at the border, at our airports and in the workplace – and to do so effectively we must provide a path for the 12 million undocumented immigrants to earn the privilege of remaining here legally,” Senators John McCain, R-Ariz., and Edward Kennedy, D-Mass., along with Representatives. Jeff Flake, R-Ariz., and Howard Berman, D-Calif., said in a statement shortly before Congress recessed. “Integral to our enforcement efforts will be a program to allow needed immigrants to come here legally and for our employers to hire them.”

A pathway to citizenship would be particularly welcome in the landscaping industry, Farner says. Many of the industry’s workers crossed borders illegally more than a decade ago and have been with their employers for years, working up to management positions. Landscape contractors trust and have invested in these workers, who are living legal lives in every other respect and just want to provide for their families, he says. “We would like to see a scenario where employers can keep those employees in a fair and legal manner,” Farner says.

But if Congress doesn’t enact comprehensive immigration policy reform this year, it is unlikely to devote much time to the issue next year, he says. The odds of legislators focusing on immigration again will depend on the political makeup of the new Congress, but many other hot topics, such as Social Security and health care reform, are in the pipeline with the next presidential election on the horizon. “It will be very difficult for Congress to swallow this beast again,” Farner says.

A comment by a member of Frist’s staff who spoke on condition of anonymity seems to echo this thought: “Obviously the Senate has addressed comprehensive reform aggressively this year.”

Electronic verification – when, not if
The timeline is difficult to predict, but chances are you’ll be required to use an electronic verification system similar to the Basic Pilot Program in the next two to 10 years. Both the House and Senate immigration bills call for employers to begin electronically verifying whether their employees are eligible to work in the United States. Frist’s staff member says such a system is a fundamental aspect of addressing the undocumented and would have to be a component of future comprehensive legislation.

Like the fence proposal, the electronic verification requirement could also make its way into law through piecemeal legislation. Members of the House of Representatives have been breaking their large immigration bill into smaller bills and sending them to the Senate in hopes of approval. Farner predicts this will continue next year if Republicans maintain control of both chambers of Congress.

Bentley says U.S. Citizenship and Immigration Services is prepared to implement an electronic verification system for all employers. “We as an agency feel confident that we would be able to meet that requirement should Congress and the president ask,” he says. Because only 12,000 employers – less than 10 percent of the nation’s 8 million employers – use Basic Pilot, he says the program would have to be phased in over a couple of years.

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