The “Border Security, Economic Opportunity, and Immigration Modernization Act” (SB 744) passed the Senate by a vote of 68 to 32 on June 27, 2013. Although it is not law, as the House of Representatives will now take up their own version of immigration reform, it is important for employers to know how the bill, if signed into law, will affect them. This article will focus on employers’ compliance and potential penalties for non-compliance under the legislation.
All employers would be required to utilize E-Verify, although the system would be gradually implemented. (If a state already had a law requiring E-Verify’s use, that state law would continue to be in effect even if the federal law did not yet cover a particular employer.) Within 90 days after the Act’s enactment, federal agencies and federal contractors would be required to utilize E-Verify. (Many federal contractors are already required to utilize E-Verify pursuant to a federal regulation.) One year after the Department of Homeland Security (DHS) publishes its implementing regulations, it may require employers involved in the country’s “critical infrastructure” to use E-Verify. All other employers would be required to use E-Verify based on this schedule after publication of the regulations: (a) 2 years – employers with more than 5000 employees; (b) 3 years – employers with more than 500 workers; (c) 4 years – all other employers, including agricultural employers; and (d) 5 years – Indian tribes. Moreover, an employer, who has been found to have violated the Act through the hiring of undocumented workers, may be required to implement E-Verify at an earlier date even if it is not scheduled to do so.
The penalties for immigration violations will greatly increase. The civil penalties for “knowingly hiring” unauthorized workers will increase from $375 – $3200 to $3,500 – $7,500 for each unauthorized alien, for the first offense; from $3,200 – $6,500 to $5,000 – $15,000 – second offense; and $4,300 – $16,000 to $10,000 – $25,000 – third or more offenses. Substantive or uncorrected technical violations will result in an increase of civil fines from $110 – $1100 for first offense/per violation to $500 – $2,000; from $550 – $1100 to $1000 – $4000 – second offense; and $1,100 to $2,000 – $8,000 – third or more offenses.
Employers, who hire undocumented workers after their mandatory enrollment date in E-Verify, but fail to verify the employee in E-Verify, will be presumed to have knowingly hired an unauthorized worker. The verification of a worker’s authorization through E-Verify is evidence of an employer’s good faith and is grounds to avoid liability, if an individual is later determined to be undocumented.
If an employee receives Registered Provisional Immigrant (RPI) status, an employer would not be considered to have previously employed an undocumented worker in violation of the law. However, undocumented workers will be able to pursue remedies under federal, state, or local laws governing wages and hour, benefits and employment standards, labor relations, workplace health and safety, work-related injuries, non-discrimination, and retaliation, regardless of their unauthorized status.
Bruce E. Buchanan is an attorney at the Nashville Office of Siskind Susser, P.C. He represents individuals and employers in all aspects of immigration law as well as employers in employment/labor law. Mr. Buchanan received his J.D. from the Vanderbilt University in 1982 and his undergraduate degree, magna cum laude, from Florida State University in 1979. He served as senior trial specialist for the National Labor Relations Board for 20 years. Mr. Buchanan also served from 1991 to 2003 as Adjunct Professor at William H. Bowen UALR School of Law. He has been in private practice since 2003.
Mr. Buchanan is past-chair of the Tennessee Bar Association’s Immigration Law Section as well as the editor of TBA’s Labor and Employment Law Section Newsletter and the TBA’s Immigration Law Section Newsletter. He writes a blog on employer immigration compliance located at http://blogs.ilw.com/immigrationcompliance/ and is a guest blogger on similar issues for LawLogix, located at http://www.lawlogix.com/electronic-i9/. Mr. Buchanan is a member of American Immigration Lawyers Association (AILA). He serves on the Board of Directors for the Nashville International Center for Empowerment (NICE), the United Cerebral Palsy of Middle Tennessee and the Middle Tennessee Seminole Club.
