Monday, May 4, 2009
From Charles M. Miller: Napolitano Opens the Worksite Enforcement Pandora’s Box
The Obama administration, through Department of Homeland Security Secretary Janet Napolitano, has signaled subtle changes to the worksite enforcement efforts of its predecessor. After the Bush administration failed to achieve its goal of comprehensive immigration reform in Congress in 2007, criminal worksite enforcement actions were emphasized, with nationally-publicized raids resulting in the arrest and detention of the employees of the targeted employers.
Secretary Napolitano’s announced changes in DHS guidelines continue criminal worksite case development, but with an expansion of humanitarian consideration for the discovered employees. The Obama administration policy is to develop administrative civil penalty assessments, largely ignored by the previous administration, while continuing to promote E-Verify, the joint Social Security Administration-DHS electronic verification system which faces an appropriations debate in the fall.
A return of emphasis to the 1986 IRCA administrative civil penalty system seems at first glance commendable. The headline-grabbing criminal worksite raids came with an unfortunate human toll on the affected employees, families and the communities involved. However, it is clear that a return of enforcement emphasis to the I-9 employers sanctions civil system, opens its own Pandora’s Box of failure and agency neglect.
The long-ignored issues regarding the mandatory universal civil verification system revisited U.S. employers this year with the litigation surrounding the delayed No-Match and government contractor E-Verify rules. The I-9 Form itself, necessary for the mandatory universal employment verification of new hires in the U.S., is a one-size-fits-all exercise in bad federal form design, with a far-reaching effect on new employees and their employers at an important early stage of the employment process.
The I-9 employer verification system itself was also the subject of a DHS 2008 interim regulation regarding the so-called unexpired document rule. Instead of comprehensive rulemaking with public comment, DHS sought a band-aid approach, publishing the interim rule before seeking public comment, eliminating “expired” documents from the lists of acceptable documents without defining or adequately explaining the effect on U.S. workers that accept new employment.
The agency recently published a new Handbook for Employers, to expressly provide additional I-9 guidance for employers. The Handbook and the interim rule both failed to advise employers that an existing DHS regulation treats the Alien Registration Card, used as a primary employment authorization document by lawful permanent residents, as having continuing authorization past its expiration date. The Social Security Administration, which shares employment authorization analysis responsibilities with DHS, has a similar rule for US passports. This absence of guidance as to the legal effect of primary authorization documents of citizens and permanent residents is reason enough to call for comprehensive rulemaking. But when you consider that U.S. employers were left without guidance as to the technicalities of the I-9 good faith defense that was passed by Congress over 12 years ago, it is clear that this neglected, widely-used system needs its own reform.
The American Immigration Lawyers Association has recommended that the
USCIS withdraw the current interim “unexpired document” rule and instead publish a comprehensive regulation that includes the long-overdue good faith defense for employers and other necessary I-9 verification system reforms. It is only in this way that U.S. employers will provided with adequate notice of their legal responsibilities. Congress should consider withholding continuing authorization and appropriations for the E-Verify program until the I-9 system is brought up to date, since the I-9 verification is the required first step in the E-Verify system.