Skip to comments.Summary of Title VII of H.R. 4437—Employment Eligibility Verification
Posted on 03/29/2006 11:05:19 AM PST by SJackson
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Summary of Title VII of H.R. 4437Employment Eligibility Verification
Telephonic and Electronic Verification. The current employment verification process relies upon employer examination of work authorization and identity documents by employers. If the documents appear genuine on their face, the employer must accept them. Two years after enactment, the bill would change this process by requiring that employers use a toll-free telephone or other electronic device to access a Social Security or Department of Homeland Security (DHS) data base to verify the validity of Social Security numbers (SSN) and alien documents used to evidence work eligibility.
Six years after enactment, private employers would have to use the new verification procedures to verify the work eligibility of all employees who previously have not been verified, even if they were determined to be work eligible based on facially genuine documents at the time they were originally hired many years ago. Many senior management and supervisory employees probably would be excluded by this process.
Verification Procedure. The new verification process would require that employers confirm through the government data base that the SSN or alien card are valid within 3 working days of hire. If they are valid, the employer receives a validation code that must be put on the I-9 Form or some similar document. If the government cannot confirm that the documents are valid, they give the employer and employee 10 days from the date of nonconfirmation to resolve the issue. If the employee does not challenge the nonconfirmation then it become a final nonconfirmation and the individual cannot be employed. If the individual challenges the nonconfirmation, verification of the validity of the documents must be obtained within the 10 days from the date of nonconfirmation. Otherwise, the person must be terminated. Nonverification codes also must be placed on the I-9 Form or its equivalent.
No Elimination and Reduction of Employment Eligibility Documents. One of the few positive aspects of a mandatory employment eligibility system would be the simplification of the hiring process by reducing the number of documents employers would have to verify to one or two. The bill does not do so. Several other reform proposals (such as the Dreier bill, H.R. 98) provide for such simplification by requiring the use of a tamperproof Social Security card and no others. The bill only studies the use of such documents but does not eliminate the use of any documents and the confusion such documents cause employers.
Recordkeeping Requirements. The recordkeeping requirements are the same as current law for new hiresI-9 Forms must be kept the later of 3 years after hire or one year after employment is terminated. For existing employees required to be retroactively electronically verified, records must kept for 3 years after reverification or 1 year after the employee is terminated.
Good faith defense. Employers who comply with the new verification procedures have a good faith defense if the system mistakenly indicates that an illegal worker is legal. But, if employers continue to employ persons for whom they do not receive a confirmation of employment eligibility under the new system, they are rebuttably presumed to have knowingly hired an undocumented worker.
Substantial Increase in Civil Penalties. The minimum penalty per illegal alien under the bill is $5,000 for a first offense, $10,000 for a second offense and $25,000 for a third or more offenses for knowingly hiring or continuing to employ illegal aliens, or failing to use the new verification system. In addition, the bill creates liability under the elevated fine structure by using ambiguous language that states that employers that provide information to the electronic verification system that they know or reasonably believe to be false are subject to the elevated fines. This seems inconsistent with the rationale of the electronic system that employers cannot independent of a government data base determine which documents are genuine and which are not. The bill provides for open-ended liability.
Under current law, the range of fines is between $250 and $10,000 for knowingly hiring or continuing to employ illegal workers. Failure to verify work eligibility by completing the I-9 Form properly brings a fine of between $100 and $1000 per I-9 Form under current law. Thus, under the bill it appears that employers that fail to use the electronic verification system are subject to a minimum of $5,000 fine per worker, plus the paper work violation penalties of up to $1,000 per person.
Mitigation of Civil Penalties for Small Employers. The bill attempts to soften the civil penalties applicable to employers that averaged employment of less than 26 full-time equivalent employees by reducing them by 60 percent. Thus, small employers would face a minimum fine of $2,000 per alien, rather than $5,000 for a first offense, which is substantially higher than the $250 to $2,000 under current law. Employers of between 26 and 100 workers would get a 40 percent reduction and those who employ between 101 and 250 would receive a 20 percent reduction.
Substantial Increase in Criminal Penalties. Under the bill, employers face a minimum of a $50,000 fine per alien if they engage in a pattern and practice of hiring or continuing to employ undocumented workers, or a minimum of a year in jail, or both. Current law provides a $3,000 fine per alien and 6 months in jail, or both.
Problematic Changes Relating to Recruiting and Referring. Recruiters and referrers are an important part of the agricultural work force. This role often is performed by farm labor contractors (FLCs) that are subject to the provisions of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). Under the bill, FLCs and other recruiters and referrers would have to telephonically or electronically verify any workers they recruit or refer before the recruiting or referring commences. The term refer is broadly defined to include the act of sending or directing a person or transmitting documents or information to another, directly or indirectly with the intent of obtaining employment for such persons in the U.S. Recruit is defined similarly to include the act of soliciting a person directly or indirectly and referring the person to another with the intent of obtaining employment for such person. The definition states that recruiters and referrers generally must do so for remuneration, as would a typical FLC. What is unclear, however, is what are the exceptions to the general rule. Many agricultural employers recruit or refer for themselves or others without obtaining remuneration or other consideration. Would they be excepted or not?
Such a requirement could be problematic, as agricultural employers and FLCs could no longer recruit by telephone, writing, or through advertising in newspapers or radio. They would have to meet recruited individuals face to face and undertake the electronic verification procedures before they could even recruit or refer the workers. This presents a logistical impossibility. Presumably, this also would apply to recruitment in foreign countries of guest workers, presenting an even greater logistical challenge. Failure to verify prior to recruitment or referral would result in the minimum fine of $5,000 per worker, subject to any applicable mitigation.
Hiring Hall Recruitment and Referral. The bill also has problematic language that states that any private party (as well as public and non-profits) who refers or recruits or otherwise facilitate the hiring of laborers for any period of time by a third party, regardless of whether they receive remuneration, is subject to the requirements of electronic and telephonic verification prior to recruiting and referring laborers. They also are subject to the minimum penalty of $5,000 per worker, if they fail to do so. This clearly would affect many agricultural employers, as discussed above. A positive aspect of this provision is that it eliminates the current exemption of unions from the verification procedures when they refer union and non-union individuals to a third party.
Government Agencies that Recruit and Refer Arguably Are Subject to Electronic Verification of Persons Referred or Recruited. Under current law, employers using guest worker programs have to recruit U.S. workers and get referrals from State employment service agencies who may, but are not required to verify employment eligibility of the those recruited and referred. If the State agencies verify the workers, they are required to send a certificate to the employer indicating that the worker has work authorization. Because it is discretionary, State agencies do not verify workers and often refer illegal aliens to agricultural employers. The one positive aspect of the bill is that it would appear to require public agencies to verify the work authorization status of those they refer. Unfortunately, the bill does not explicitly require that the agencies send employers certificates that the referred workers have work authorization.
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How about taxing funds sent abroad through wire services.
Unless, of course, you can prove that you have already paid income taxes on the funds.
Thought you might like a look at this.
"Hiring Hall Recruitment and Referral. "
This part seems to take some steps to care of temp. agency verification.
If you open a bank account your identity/ss# are verified, and if they don't match you're subject to witholding, including on proceeds. The rule should be the same for non-bank wire services.
We don't have two years.
In the mean time...
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