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Washington Labor & Employment Wire » Immigration

The Legal Workforce Act (H.R. 2164)


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Core Provisions: On June 14, 2011, Rep. Lamar Smith (R-Texas) introduced the Legal Workforce Act (H.R. 2164), a bill amending the Immigration and Nationality Act to implement a fully electronic (”E-Verify”) worker verification system. The bill would make E-Verify mandatory for all employers, repealing the current paper-based I-9 system. Mandatory E-Verify participation would be phased in by the Act in six-month increments based on a business’s number of employees-e.g., within six months of enactment, businesses with more than 10,000 employees would be required to use E-Verify.  Businesses with 500-9,999 employees, 20 to 499 employees, and 1 to 19 employees would have 12, 18, or 24 months to comply, respectively. 

The bill also contains special provisions for agricultural employees, providing that employees performing “agricultural labor or services” are not subject to the bill’s E-Verify provisions until 36 months after the Act’s enactment. Furthermore, a seasonal agricultural employee will not be considered a “new hire” subject to verification if the individual returns to work for their previous employer. Finally, the bill contains a safe harbor provision for employers that act in good faith and also explicitly preempts any state laws mandating E-Verify use for employment eligibility purposes, although states and localities may condition business licenses on the requirement that employers comply with the federal E-Verify law in good faith.  

Status: Rep. Smith introduced H.R. 2164 with 13 co-sponsors on June 14, 2011. The Bill was referred to the House Committee on the Judiciary, the Committee on Education and the Workforce, and the Committee on Ways and Means on the same day.


House Resolution on Immigration Enforcement (H.Res. 1026)


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Core Provisions: This resolution calls for the mandatory use of the E-Verify program by employers of workers within the United States as well as enforcement policies that hold both employers and employees responsible for violations of United States immigration law. The resolution also states that it is a “critical responsibility” of the Federal Government to install and sustain border infrastructure and manpower to control the United States borders and protect from unauthorized passage of persons or contraband. Additionally, the resolution states that no immigration reform adopted by Congress should legalize, condone, or grant amnesty for the otherwise unlawful entry or presence of individuals in the United States.

Status: Rep. Jason Chaffetz (R-UT) and twenty-one co-sponsors introduced the resolution on January 21, 2010. It was referred to the House Committee on the Judiciary and the Committees on Education and Labor, and Homeland Security on the same day.


Homeland Security Appropriations Bill (H.R. 2892)


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Core Provisions: On October 15, the House approved 307-114 a conference report for the 2010 Homeland Security Appropriations Bill. The legislation includes a three-year extension of E-Verify, the federal government’s voluntary, internet-based system that allows employers to verify employees work eligibility, and appropriates $137 million to operate the system.

The bill also provides three-year authorization extensions for visa programs for religious workers (R visa), rural-serving doctors (Conrad 30-J visa), and those who invest money in a business that creates at least 10 full-time jobs in the United States (EB-5 visa).

Status: Rep. David Price (D-NC) introduced the bill on June 16, 2009.  The House originally approved its version of the bill on June 24, 2009. The Senate asked for a conference to resolve differences. The conference report will now move to the Senate for consideration.


New IDEA (Illegal Deduction Elimination Act) (H.R. 3580)

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. 3580 on September 16, 2009, and it was referred to the House Ways and Means, Judiciary, and Education and Labor Committees.  Rep. King introduced a similar bill in the 110th Congress, but that bill failed to make it out of committee.


Secure America through Verification and Enforcement Act (S.1505)

Core Provisions: The Secure America through Verification and Enforcement Act (”SAVE Act”) would amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to make employer use of the E-verify program mandatory.  E-verify is an internet-based system that allows employers to verify employees’ work eligibility, but the system has been criticized for providing erroneous eligibility results due to name changes, citizenship status changes, and other data-entry or data processing errors.  

The legislation phases-in mandatory use of e-verify, requiring immediate use of E-verify by federal agencies, federal contractors, and employers that employ more than 250 individuals in the United States.  Within four years of its passage, the bill would require all employers to confirm the employment eligibility of newly hired and current employees through E-verify. 

On July 8, the Senate approved an amendment to the 2010 homeland security appropriations bill that would make E-Verify permanent and would also require all federal contractors to use E-Verify beginning September 8, 2009.

Status: S. 1505 was introduced by Senator Mark Pryor (D-A.R.) on July 23, 2009 and referred to the Senate Committee on Finance.  A comparable bill H.R. 3308 was introduced in the House by Representative Heath Shuler (D-N.C.) on the same date and referred to the House Committee on Homeland Security, and in addition to the Committees on the Judiciary, Ways and Means, Education and Labor, Oversight and Government Reform, Armed Services, Agriculture, and Natural Resources.  Similar legislation, S.2368 was introduced by Senator Pryor during the 110th Congress on November 15, 2007.  That legislation was referred to the Senate Committee on Judiciary, but failed to make it out of committee.


Homeland Security Appropriations Bill (H.R. 2892)

Core provisions:  On July 9, the Senate approved by unanimous consent an amendment to the 2010 homeland security appropriations bill that would prohibit funds in the bill from being used to rescind the federal no-match program.

The amendment was proposed by David Vitter (R-La.) and would keep in place the no-match rule, which was initially promulgated by the Bush administration in 2007.  Under the system, DHS sends a letter to alert employers when an employee’s Social Security number does not match government records.  The rule requires employers to resolve discrepancies or face liability. 

The unanimous amendment came one day after Department of Homeland Security Secretary Janet Napolitano announced that the current administration intends to halt the “no-match” rule.  The rule is currently being challenged in court by a coalition of labor unions, business groups, and immigrant rights groups, and the Social Security Administration has suspended sending out no-match letters until the lawsuit is resolved. 

Status:  Rep. David Price (D-N.C.) introduced the bill in the House June 16, 2009.  The House approved its version of the appropriations bill June 24, 2009.  The Senate has asked for a conference to resolve differences.


Homeland Security Appropriations Bill (H.R. 2892)

Core provisions:  On July 8, the Senate approved an amendment to the 2010 homeland security appropriations bill that would make E-Verify, the federal government’s voluntary employment verification system, permanent. The amendment would also require all federal contractors to use E-Verify beginning September 8, 2009.Employers can currently use the program to verify employment eligibility of new hires by comparing information from I-9 forms with federal government databases. The comparison is done through a website operated by the Department of Homeland Security and the Social Security Administration.

The Senate passed the amendment, which was offered by Jeff Sessions (R-Ala.), by a vote of 53-44. The House of Representatives previously voted to extend the program for two years. Also added to the bill is an amendment offered by Charles Grassley (R-Iowa) that would allow an employer to verify the status of all employees, not just new hires.

Another part of the amendment approved July 8 includes a provision from Patrick Leahy (D-Vt.) which would permanently authorize the EB-5 visa program, which enables foreigners who invest at least $500,000 in the United States to secure a green card.Homeland Security Secretary

Janet Napolitano had announced earlier that day that DHS will implement a regulation that will award federal contracts only to employers who use E-Verify, prompting a motion by Charles Schumer (D-N.Y.) to table the amendment as moot. The motion to table the amendment was rejected.

Status:  Rep. David Price (D-N.C.) introduced the bill in the House June 16, 2009. A cloture motion on the bill has been presented in the Senate, with the latest floor actions July 8, 2009.


Employee Verification Amendment Act of 2009 (H.R. 2679)

Core Provisions:  This legislation would extend the federal government’s electronic employment verification pilot program, E-Verify, until September 30, 2014. 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 this bill, 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. The legislation also authorizes two studies by the General Accountability Office: examining the program’s effect on small businesses and on erroneous “no-matches”.

Status: H.R. 2679 was introduced by Rep. Gabrielle Giffords (D-AZ) on June 3, 2009 and referred to the Committees on the Judiciary, Education and Labor, and Ways and Means. A similar bill passed the House in the 110th Congress by a vote of 407-2, but did not make it out of committee in the Senate.


New Employee Verification Act (H.R. 2028)

Core Provisions: The New Employee Verification Act would replace the government’s current E-Verify program with the Electronic Employment Verification System (EEVS).  E-Verify is an internet-based system that allows employers to verify employees’ work eligibility, but the system has been criticized for providing erroneous eligibility results due to name changes, citizenship status changes, and other data-entry or data processing errors.  E-Verify relies on Social Security and Department of Homeland Security databases to verify employee eligibility.

The proposed system would verify employment eligibility by utilizing the National Directory of New Hires, a state new hire database originally developed to facilitate child support enforcement.  The system would still utilize the Social Security and Department of Homeland Security databases, but those databases would also receive funding to improve and update their databases and verification programs.  Employers seeking to verify their employees’ eligibility could access the EEVS system via the Internet or a toll-free telephone line. 

Status: H.R. 2028 was introduced by Rep. Sam Johnson (R-TX) on April 22, 2009, and referred to the Judiciary, Education and Labor, Rules, and Ways and Means Committees.  The full text of the bill has not yet been released. Rep. Johnson introduced similar legislation in the 110th Congress, but the bill failed to make it out of committee.


Stimulus Package Omits E-Verify, Includes Whistleblower Provisions

On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act, the well-publicized $787 billion stimulus package designed to promote economic recovery and minimize unemployment (H.R. 1). The Senate and the House passed a joint version of the bill on February 13, 2009.

The final version of the Act omitted the controversial E-Verify requirements included in prior House versions of the bill.  The provisions would have prohibited certain federal contractors from receiving any stimulus funding unless they used the E-Verify system, an internet-based system that allows employers to verify employees’ work eligibility and is jointly administered by the Department of Homeland Security’s U.S. Citizenship and Immigration Services and the Social Security Administration. Opponents of E-Verify had criticized its error rate.    

The final version of the Act provides whistleblower protections to employees of any private, state, or local government entity that receives a contract, grant, or other payment from the stimulus’s funds. Under the whistleblower provisions, an employer cannot discharge, demote, or take any adverse employment action against an employee who reports evidence of: (1) gross mismanagement of a contract or grant, (2) a gross waste of covered funds, (3) a substantial and specific danger to public health or safety related to the implementation of stimulus funds, (4) an abuse of authority related to the implementation of stimulus funds, or (5) a violation of law, rule, or regulation related to a contract awarded as part of the stimulus. 

A person alleging a violation of these provisions shall submit a complaint to the inspector general of the agency administering the contract.  If the inspector general denies the employee relief or fails to issue a decision within 210 days of the filing of the complaint, the employee has the right to bring a complaint for a jury trial in federal court.  Preexisting mandatory arbitration clauses, except for those negotiated in the context of a collective bargaining agreement, are not binding on claims arising out of the stimulus’s whistleblower provisions.