Tuesday, October 5, 2010

Is Employer Certification an Inevitable Component of Comprehensive Immigration Reform?

There any number of variations of potential future legislation that might be called “Comprehensive Immigration Reform.” However there is one certainty in every one of these pieces of potential legislation—increased compliance requirements for employers in regards to immigration-related laws. Now it seems that the idea of a CEO certification of immigration law compliance has found favor on both sides of the aisle in the Senate.

As part of the failed immigration reform compromise efforts in 2007, Senator Jeff Sessions, an advocate for strong Homeland Security worksite enforcement measures, introduced S. 1348, which would have amended INA Section 274A to provide for the Homeland Security Secretary to require certification if there is "reasonable cause" to believe that an employer was in noncompliance with the employment verification provisions of the Immigration and Nationality Act. The Sessions Amendment provided for auditing methodology and recordkeeping standards.

Now the Democrats have followed suit. Senators Menendez and Leahy introduced the Comprehensive Immigration Reform Act of 2010 (S. 3932) with almost identical provisions to the Sessions Amendment, as follows:

Comprehensive Immigration Reform Act of 2010

TITLE III, Worksite Enforcement;

Unlawful Employment of Aliens

Section 301(e), Unlawful Employment of Aliens;

If the Secretary has reasonable cause to believe that an
employer has failed to comply with this section, the
Secretary is authorized, at any time, to require that
the employer certify that it is in compliance with this
section, or has instituted a program to come into compliance.
Within 60 days of receiving a notice from the Sec-
retary requiring such a certification, the employer's
chief executive officer or similar official with respon-
sibility for, and authority to bind the company on,
all hiring and immigration compliance notices shall
certify under penalty of perjury that the employer is
in compliance with the requirements of subsections
(c)(1) through (c)(4), pertaining to document
verification requirements, and with subsection (d),
pertaining to the System (once that system is imple-
mented with respect to that employer' according to
the requirements of subsection (d)(1)), and with any
additional requirements that the Secretary may pro-
mulgate by regulation pursuant to subsections (c) or
(d) or that the employer has instituted a program to
come into compliance with these requirements. At
the request of the employer, the Secretary may ex-
tend the 60-day deadline for good cause. The Sec-
retary is authorized to publish in the Federal Reg-
ister standards or methods for such certification, re-
quire specific recordkeeping practices with respect to
such certifications, and audit the records thereof at
any time, this authority shall not be construed to
diminish or qualify any other penalty provided by
this section.

Attorney Chuck Kuck and I have recently concluded that such measures are inevitable, in our article, “The Case for the Inevitable: National Compliance Auditing Standards”, as follows:

"The time has come, not only for national model standards for immigration compliance auditing, but also for the use of competent attorney auditors, who follow generally-accepted methodology and principles The active use of a compliance program including immigration compliance auditing conducted by external attorney auditors, can also provide Sarbanes-Oxley immigration law compliance for corporate management. The authors recommend a federal requirement for an annual employer immigration compliance certification requirement, supported by attorney auditing, according to generally-accepted national standards. It is our hope that such an immigration compliance auditing reform proposal will set the groundwork for comprehensive immigration reform."

The advantage to such a federal employer certification program is that the largest companies in America would need to adopt compliance programs and administer them in an efficient manner. Such an atmosphere of compliance in America's top companies would allow the DHS Worksite enforcement efforts to focus on companies' annual reporting based on the reporting of independent external attorney auditors rather than the current policy of IRCA inspections which rely on document-by-document auditing.