Immigration Compliance In 2008: What’s Ahead?

March 12, 2008 Employment Law360

Congress spent 2007 debating how to reform our nation’s dysfunctional immigration system – without any real result. The administration responded with high-profile enforcement and new regulations.

Fear rules large and small businesses alike as illegal immigrant employees have been arrested and deported, and as companies face stiff fines and their managers are threatened with imprisonment. Travel between the U.S., Canada, Mexico and Bermuda has become more cumbersome with new passport and travel identification procedures.

But the root problem was not solved. Only the symptoms were treated, with minimal positive effect.

As presidential hopefuls jockey for position this election year, voters need to press this issue with the candidates and ask, “What are the long-term solutions for legal immigration?”

Promises of bright futures continue to beckon foreigners to America’s shores, including talented students and professional specialists who hold great promise for corporate America’s growth. Instead of welcoming them after reasonable clearances, our government keeps them in limbo.

Visa processing is for many like the opening scene from the movie “Casablanca,” where people wait, and wait and wait … This can only hurt our collective competitive position in the world economy, as this talent, unlike those desperate refugees in 1942 Casablanca, can go almost anywhere they want.

What of the I-9? Heading into 2008, immigration compliance reform will remain a moving target. The new I-9 form, for example, will be required for each new hire to assure that companies only employ individuals who have the correct authorization to work.

But it is a self-screening system in a precarious balancing act. Employers still often have to choose between violating anti-discrimination laws and facing government sanctions for hiring illegal aliens.

The I-9 form warns employers of the illegality of discriminating against otherwise qualified, credentialed individuals. The first section attests to the source of an individual’s employment eligibility, while the second section provides a limited number and type of original documents to prove eligibility and identity. The third part revalidates an individual’s authorization that is time-limited.

Employers of aliens risk discrimination complaints when requiring specific documents that not all potential new hires have, and by denying employment to eligible individuals. Most employers rely on good faith in accepting documents’ validity.

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