There’s a new sheriff in town—and it’s you

by James Gibson

The federal government’s failure to pass reform measures for immigration has produced a wave of new legislation at the state level that is putting you, the independent business person, in a new role—Immigration Law Cop.

The federal government’s failure to pass reform measures for immigration has produced a wave of new legislation at the state level that is putting you, the independent business person, in a new role—Immigration Law Cop. In 2007, 46 states enacted 244 immigration-related measures, according to the National Conference of State Legislatures. The various laws range from requiring employers to use the federal government’s E-Verify electronic employment verification system (Illinois lawmakers in 2007 barred employers from using E-Verify until it became more accurate —this has since been reversed) to penalizing employers of illegal immigrants with fines, misdemeanor charges, felony charges and loss of business licenses. This is only the beginning.

E-Verify, formerly referred to as the Basic Pilot Program, is an Internet system operated by a partnership between the Department of Homeland Security and the Social Security Administration. Currently, the E-Verify system is voluntary and free to employers, unless state law dictates otherwise. Theoretically, the system provides a link to the federal databases to assist employers in determining new hires’ employment eligibilities. Since I have a healthy skepticism of any "free and easy-to-use government program," I signed into the EVerify Web site and printed out the 64-page user manual. I have not taken the time to wade through the training. Arizona’s law has been considered one of the most devastating for businesses. A company caught knowingly employing an undocumented worker can have its license suspended for up to 10 days. If the company should get caught a second time, it can lose its operating license altogether. Governor Janet Napolitano has referred to this new law as the "death penalty" for businesses, particularly small to medium-size businesses lacking formally trained human resource professionals.

Oklahoma’s new immigration-related law, which took effect November 2007, is more disturbing and has begun affecting the state’s economy and its immigrant communities. Many companies have already reported losses in alarming numbers. Businesses, such as grocery or specialty stores, which target the legal immigrant, have reported decreases in revenue of up to 40 percent. Industries, such as landscaping, hospitality and consumer services, which rely on the legal immigrants for employees, have reported up to 57 percent of their workforce has relocated. While the employee may be legally employed, it may be other members of the household that are in the country illegally. Many other states are basing their reform issues on Oklahoma’s law and are adopting legislative measures to reflect the state’s success. On March 13, Utah’s comprehensive immigration bill became a law. The bill, which legislatures patterned after Oklahoma’s, does not become effective until July of 2009. The law makes it a crime to conceal, harbor or shelter illegal immigrants for commercial advantage or private financial gain. The delayed effective date allows for Utah to fully prepare for the law’s potential consequences. It has also been noted the delay will give the federal government time to "tackle the issue" following the elections. At least 17 additional states have similar bills in various stages of the legislation process. To further complicate the process, U.S. Citizenship and Immigration Services (USCIS) requires employers to use the new Employment Eligibility Verification System (http://www.uscis.gov/files/form/i-9.pdf) beginning Dec. 26, 2007, or risk being fined and penalized.

The new Form I-9 adds five documents to the list of acceptable credentials employers can use to verify the employment eligibility of new hires. The new form also removes five documents from the list of acceptable credentials. As you might expect, you as a business owner, are responsible for complying with these new regulations to avoid the wrath and fines from the federal agencies. I cannot stress how important these new laws are for employers. The old "see no evil, hear no evil, speak no evil" approach will work against you regarding potential complaints. If you have a suspicion, follow your gut and investigate. If you encounter the possibility of having more than 10 new hires (new positions or replacement) per year, it would be advantageous to hire a human resource professional to perform a workforce audit and provide additional training regarding employment eligibility verification. If you plan to be the new sheriff in town, you better have your guns loaded.