Core Provisions: This legislation would amend the Internal Revenue Code to make wages and benefits paid to unauthorized aliens nondeductible for federal taxation purposes. There would be a six-year limitation on assessments under the new provision. The legislation includes a safe harbor provision for employers who comply with the terms of the E-Verify program and obtain confirmation of the identity and employment eligibility of the employee at issue. The legislation would also require the Secretary of the Treasury to work with the Commissioner of the Social Security Administration and the Secretary of the Department of Homeland Security by disclosing the taxpayer identity information of employers whose deductions for wages for ineligible workers were denied, and the taxpayer identity information of the corresponding ineligible workers.

Status: Rep. King (R-IA) introduced H.R. 6813 on August 1, 2008, and it was referred to the House Ways and Means, Judiciary, and Education and Labor Committees.

Core Provisions: This legislation is intended to prohibit activities that assist, encourage, direct or induce unauthorized aliens to reside in the United States. Among many other provisions, the LEAVE Act would make the E-Verify system permanent and would mandate verifying work eligibility of new hires using E-Verify. Employers of more than 250 individuals, certain federal contractors and subcontractors, and federal agencies would be required to verify the eligibility of new hires within one year of enactment, with other employers being phased into the requirement two to four years after enactment. All employers would also be required to use E-Verify to confirm eligibility of all current employees by four years after enactment. An employer would not be liable for hiring an unauthorized alien if the hiring was due to an unknown E-Verify error as long as the employer terminated the unauthorized alien upon being informed of the error.

The LEAVE Act would also require the Commissioner of Social Security to notify employers annually of employees whose Social Security numbers do not match their name or date of birth in the Commissioner’s records, and the employer would then have 30 days to correct the mismatch or terminate the employee. The Commissioner would also monitor employment-based information for indicia of identity theft, such as an individual with concurrent earnings from more than one employer over an extended period.

The legislation also includes provisions in many different areas intended to deter illegal immigration and better enforce existing immigration laws. These include provisions protecting “identity security,” prohibiting residential mortgages and rentals to illegal aliens, denying Social Security credit for individuals who were unlawfully present at the time of the work, prohibiting illegal aliens from obtaining financial services, and increasing border and law enforcement efforts.

Status: Rep. Miller (R-CA) introduced the LEAVE Act on August 1, 2008 and it was referred to the House Judiciary, Oversight and Government Reform, Education and Labor, House Administration, Financial Services, Ways and Means, and Homeland Security Committees.

Core Provisions: This legislation would amend the Immigration and Nationality Act to require the Secretary of Homeland Security (”Secretary”) to establish and administer a secure electronic system to verify employment eligibility using individuals’ Social Security numbers. Employers would be required to verify employment eligibility for all new hires. For most employers, verification of the eligibility of existing employees would be required within six years of enactment of the legislation, but verification of existing employees would be required within three years of enactment for federal, state, and government employers, and for employers of individuals working in a government building, military base, nuclear energy site, airport, or other “critical infrastructure” employers.

The verification system would provide verification or a tentative nonverification of an individual’s identity and employment eligibility within three working days. In the cases of tentative nonverification, a secondary process would provide a final eligibility determination within ten working days of the tentative nonverification. Where there is a final nonverification, the employer would be required to terminate the individual and provide the Secretary with any information that would be helpful in the enforcement or administration of immigration laws. If an employer received a tentative nonverification notice, the employer would be required to inform the individual in writing within three days. An individual would then have ten days to contest the nonverification. An employer may not terminate an individual based on a tentative nonverification unless the individual does not contest the eligibility determination within ten days or the individual refuses to acknowledge receipt of the notice of their tentative ineligibility.

An employee who is terminated from employment as a result of a final nonverification notice would be able to file an appeal within 60 days. If the Secretary determined the final nonverification was erroneous due to no act or omission of the individual, the Secretary would compensate the individual for lost wages from the Employment Verification Compensation Fund, which would be funded by fines and penalties assessed against violators.  An individual would be able to appeal a final determination in the administrative review process within 60 days in federal district court.

Continuing to employ someone after receiving a final nonverification would create a rebuttable presumption of a statutory violation.  Failing to use the employment eligibility system as required by the legislation would be treated as a violation of the Immigration and Nationality Act’s prohibition against knowingly hiring an unauthorized worker. The legislation would provide employers with a defense if they submitted a verification request in a timely fashion, but the verification system did not respond in a timely manner.

The legislation would raise the fines and other criminal penalties for violations.  In determining the amount of a penalty, the size of the employer would be removed as a consideration, but the legislation adds a provision mitigating civil money penalties for smaller employers.

Contractors would be liable for hiring or employing an unauthorized alien through a subcontractor unless the contractor verified through the eligibility verification system that all subcontractor employees were eligible. An employer classified as a “repeat violator” by the Secretary would be debarred from receiving federal contracts, grants, or cooperative agreements for five years. Subcontractors and labor brokers that engaged in a pattern or practice of violations would face heightened criminal penalties.  The Department of Homeland Security would be required to create and maintain a publicly available online database of contractors and subcontractors that would disclose the number of employment eligibility violations, employment eligibility verification rejections, and the total number of verification attempts made by each entity.

The legislation would require several reports to the Inspector General and to Congress about elements of the proposed revised employment eligibility verification system, which would examine cost and administrability and the potential effects on employers, employees (citizens and non-citizens), tax revenue, and privacy.

Status: On August 1, 2008, Rep. Marshall (D-GA) introduced the Electronic Employment Eligibility Verification and Illegal Immigration Control Act of 2008, which was referred to the House Judiciary, Ways and Means, and Education and Labor Committees.

In concert with the House’s recent passage of legislation extending the E-Verify employment verification program (H.R. 6633) and a House subcommittee’s vote to move forward on visa recapture legislation (H.R. 5882), Sen. Robert Menendez introduced the Visa Efficiency and E-Verify Extension Act of 2008 (S. 3414) on July 31, 2008.

S. 3414’s E-Verify provisions are identical to H.R. 6633, which passed the House by a vote of 407-2 on July 31.  The bill extends the E-Verify employment verification pilot program by five years.  The voluntary program allows employers to check the employment status of new hires online and verify their Social Security numbers.  Absent an extension, the program was slated to expire in November 2008.  The E-Verify provisions also authorize two General Accountability Office studies concerning the program’s effect on small business and on erroneous “no-matches”.  The bill further provides that the Social Security Administration’s administrative costs from oversight of the program be reimbursed by the Department of Homeland Security.

S. 3412 additionally includes visa recapture provisions identical to those in H.R. 5882, which the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law approved at a July 31 markup session. These provisions would recapture employment-based and family-based immigrant visas that went unused between fiscal year 1992 and fiscal year 2007 due to bureaucratic delays.  Going forward, the bill would also roll over unused visas into the following fiscal year.

S. 3414 also extends the Conrad State 30 program, which provides every state with 30 annual J-1 visa waivers for foreign medical graduates.

On July 31, 2008, the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law approved H.R. 5882 at a markup session. This legislation would recapture employment-based and family-based immigrant visas that went unused between fiscal year 1992 and fiscal year 2007 due to bureaucratic delays. Going forward, the bill would also roll over unused visas into the following fiscal year.

H.R. 5882 was introduced on April 23, 2008 by Rep. Lofgren (D-CA).  The subcommittee approved the legislation on a vote along party lines, and the bill will now move to the House Judiciary Committee for consideration.

Core Provisions:  H.R. 6633 extends by five years the federal government’s electronic employment verification pilot program, E-Verify, which was slated to expire in November 2008.  E-Verify is an Internet-based tool that allows employers - on a voluntary basis - to check the employment status of new hires and verify their Social Security number, protecting against undocumented labor and identification theft.

Under H.R. 6633, the Social Security Administration’s costs in administering the program are reimbursed by the Department of Homeland Security.  Participation in the program remains voluntary under the bill.

H.R. 6633 additionally authorizes two studies by the General Accountability Office: examining the program’s effect on small businesses and on erroneous “no-matches”.

Status: H.R. 6633 was introduced by Rep. Gabrielle Giffords (D-AZ) on July 29, 2008. It passed the House by a vote of 407-2 on July 31 on a motion to suspend the rules and pass the bill.

On June 12, 2008, the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law held a hearing on the need for green cards for highly skilled workers. The testimony focused on two major sectors: science, technology, engineering and mathematics (STEM) and nursing.

Most of the STEM testimony focused on three bills introduced by Rep. Lofgren (D-CA) that attempt to alleviate the shortage of STEM employees. H.R.5882 would attempt to recapture employment-based visas lost to bureaucratic and processing delays. The High Skilled Per Country Level Elimination Act (H.R.5921) would remove the country limits on employment-based admissions. H.R.6039 would exempt foreign students who have earned STEM graduate degrees in the United States from the cap on employment-based visas.

Edward Sweeney, Senior Vice President of the National Semiconductor Corporation, and Lee Colby, Past Chair of the Institute of Electrical and Electronic Engineers Santa Clara Valley Section, both testified in support of all three proposals. The two industries have found common ground on this issue because of the lack of qualified STEM employees, due in part to the immigration system. STEM employees are crucial because they create jobs in other sectors, a point noted by Rep. Lofgren.

In support of H.R.6039, John Pearson, Director of Bechtel International Center at Stanford University, reported that the United States was losing in the global competition to attract STEM employees. Responding to questioning by Rep. Lofgren, Pearson stated that the United States should improve the education of Americans in addition to allowing more foreigners the opportunity to work in the United States. 

Mark Krikorian, Executive Director of Center for Immigration Studies, expressed skepticism about the need for more high-skilled workers, proposing that only aliens of extraordinary ability and outstanding researchers and professors (employment-based categories 1 and 2) should receive visas. Rep. King (R-IA) agreed with Krikorian that unlimited immigration should not occur, but pointed out that the reason some foreign STEM workers get paid average wages is in part due to immigration restrictions made on them.

Rep. Goodlatte (R-VA), Rep. Smith (R-TX) and Rep. King all endorsed the idea of immigration reform to allow for more employees in certain sectors, although all three warned of the need for limitations on immigration. Rep. Gutierrez (D-IL), however, asserted that there must be a holistic approach to immigration reform, which should include both the STEM employee as well as the temporary farm worker.

Rep. Conyers (D-MI), Rep. Gutierrez and Rep. Lofgren emphasized that the need for nurses will only increase as the baby boom generation gets older. Jana Stonestreet, Chief Nursing Executive of Baptist Health System testified in favor of the Emergency Nursing Supply Relief Act (H.R.5924) which would provide additional visas for nurses. In response to questioning by Rep. Lofgren, Cheryl Peterson, Senior Policy Fellow of the American Nurses Association (ANA), stated that although the ANA would not oppose H.R.5924, it did not believe immigration will solve the 10-year nursing shortage. Both Rep. Lofgren and Rep. Jackson-Lee (D-TX) expressed their party’s desire to find solutions for both immigration reform and the nursing shortage.

On June 10, 2008, the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held a hearing on “Electronic Employment Verification Systems: Needed Safeguards to Protect Privacy and Prevent Misuse.” Most of the testimony concerned the current E-Verify system, and the provision in the proposed Secure America Through Verification and Enforcement Act (”SAVE Act”) (H.R. 4088) that would make employer participation in the E-Verify program mandatory. Administered in part by the Department of Homeland Security (DHS), the E-Verify system requires employers to submit employees’ Social Security numbers and identifying information. Where employees’ information is not consistent with Social Security Administration (SSA) records, employees have ten days to correct the mismatch, or the employer is required to terminate the employee.

Rep. Shuler (D-NC) and Rep. Calvert (R-CA) testified in favor of extending the E-Verify program. In response to critics of widespread mandatory implementation of the program, Rep. Shuler noted that E-Verify is currently required by law to varying degrees in Arizona, Colorado, Georgia, Idaho, Minnesota, Mississippi, North Carolina, Oklahoma, and Utah, and has been largely a success. Glenda Wooten-Ingram, an experienced Director of Human Resources at hotels in the Washington D.C. area, praised E-Verify for making it easier for employers to verify quickly and inexpensively employee work eligibility, and to deter ineligible job applicants. Jonathan Scharfen, acting director of U.S. Citizen and Immigration Services, testified in favor of E-Verify, and described recent improvements to the system. However, when questioned by Committee Chairman Conyers (D-MI), Scharfen admitted that the program only rarely results in prosecutions against employers for knowingly hiring illegal immigrants.

Carolyn Shettle, Senior Study Director at Westat, testified about the results of its study of the E-Verify program, which was commissioned by U.S. Citizenship and Immigration Services. Shettle reported that common types of employer noncompliance include using E-Verify to screen job applicants, and taking prohibited adverse actions against employees while they are contesting preliminary mismatches by, for example, restricting work assignments or delaying training.  Westat’s recommendations for improving E-Verify include addressing the fact that work-authorized foreign-born workers are significantly more likely to receive tentative non-confirmations than U.S.-born workers.

Witnesses who testified against extending the E-Verify program included Christopher Williams, Director of the Working Hands Legal Clinic, and Timothy Sparapani, Senior Legislative Counsel of the American Civil Liberties Union, both of whom cited Westat’s findings as evidence of E-Verify’s flaws. Williams emphasized E-Verify’s “unacceptably high error rates,” and employer non-compliance with program rules. Sparapini asked Congress to block any proposal for mandated employment eligibility verification that does not adequately provide workers with a “fair and just set of administrative and judicial procedures to resolve data errors promptly and efficiently.”

Rep. Johnson (R-TX) and Rep. Giffords (D-AZ) testified in favor of competing legislation, the New Employee Verification Act of 2008 (”NEVA”) (H.R. 5515), which would provide an alternative electronic verification system. Rep. Johnson testified that it is inappropriate that DHS, an agency responsible for tracking terrorists, maintains E-Verify databases on the employment histories of U.S. citizens, especially when SSA has always had the responsibility to track the earnings of American workers. Rep. Johnson asserted that the NEVA electronic verification system “builds upon the lessons learned from E-Verify,” and noted that his legislation is supported by employer groups including the National Association of Manufacturers, Society for Human Resource Management, National Association of Home Builders, and National Federation of Independent Business.

On April 8, 2008, DHS announced that it had received enough H-1B visa petitions to meet the cap for fiscal year 2009 (October 1, 2008 to September 30, 2009). H-1B visas may be granted to highly skilled, college-educated, temporary foreign workers for a maximum of six years, but only 65,000 H-1B visas may be issued per year. DHS’s Citizenship and Immigration Services received approximately 163,000 visa petitions during a five-day filing period, and the visas will be distributed via lottery. 

In March and April 2008, three bills were introduced to raise the annual H-1B visa cap and to recapture and redistribute unused visas from prior years. For summaries of the pending legislation, please see our posts on The Strengthening United States Technology and Innovation Now Act (H.R.5642), the Global Competitiveness Act of 2008 (S.2839), and House Bill H.R.5882.

Core Provisions: This untitled bill seeks to recapture approximately 210,000 employment-based immigrant visas (H-1B visas) that went unused between fiscal year 1992 and fiscal year 2007 due to bureaucratic delays and to prevent losses of family and employment-based immigrant visas in the future by allowing unused visas to roll over to the following fiscal year.

Status: On April 23, 2008, Rep. Zoe Lofgren (D-Calif.) introduced H.R. 5882. The bill was referred to the House Committee on the Judiciary.