House GOP Leadership Signals Support for Mandatory Employment Verification and More Visas for Skilled Workers

by Obermayer Rebmann Maxwell & Hippel LLP
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U.S. employers should take note of the House GOP’s announcement on January 30, 2014, because it could signal a move towards mandatory participation in E-Verify and an increase in the number of visas available to foreign workers. Specifically, House leaders announced their support for stronger employment verification and workplace enforcement as well as an increase in the number of employment-based immigrant and nonimmigrant visas made available to foreign workers. These issues were also addressed in the immigration reform bill S. 744 passed by the Senate in June 2013. If both houses of Congress come to an agreement on these two issues, 2014 could bring about significant changes for employers.

The GOP announcement is part of a list of what party leadership calls “Standards” for immigration reform, which serve as guidelines for legislative action. The six main areas covered by these Standards are:

  1. Border security and interior enforcement;
  2. A fully functioning biometric entry-exit visa tracking system;
  3. Employment verification and workplace enforcement;
  4. An immigration system based more on U.S. economic needs;
  5. A plan to help young people who entered the United States unlawfully as children; and
  6. Unlawful immigrants or “individuals living outside the law.”

The concern expressed by the third standard—stronger employment verification and workplace enforcement—relates to the fact that there remain several million people working without authorization despite the fact that the Employment Eligibility Verification Form I-9 (“Form I-9”) has been mandatory for all employers since the Immigration Reform and Control Act of 1986 (“IRCA”). The IRCA required employers to verify that all newly-hired employees present “facially valid” documentation verifying the employee’s identity and legal authorization to accept employment in the United States. Unauthorized employment remains extremely common, partly because the I-9 system relies largely on paper documents that can be forged easily.

E-Verify is an Internet-based, free program run by the federal government that compares information from employee’s Form I-9 to data from U.S. government records to determine employment eligibility. Participation in E-Verify is not universally mandated. An Executive Order and subsequent Federal Acquisition Regulation (“FAR”) rule required federal contractors to use E-Verify to electronically verify the employment eligibility of employees working under covered federal contracts. Also, currently at least 20 states require some employers to participate in E-Verify. In 2012, Pennsylvania enacted the Public Works Employment Verification Act, which requires all public work contractors and subcontractors to participate in E-Verify. Though not without its own problems, E-Verify, or some similar electronic employment eligibility program, is likely to become mandatory if the House joins the Senate this year in support of a stronger employment verification system.

The concern expressed by the fourth standard—an immigration visa system based more on U.S. economic needs—relates to the fact that the current U.S. immigrant visa (green card) system is more heavily family-based than employment based. Along with the Senate, House GOP leadership is concerned that too few visas are available for skilled workers, causing a kind of “brain drain” among foreign students and others who have spent years in U.S. universities only to have to leave the United States, taking much needed job skills with them. The GOP joined the Senate in calling for a system by which visa and green card allocations are more responsive to the needs of employers and the desire for exceptional individuals to help grow the U.S. economy.

According to the U.S. State Department approximately 140,000 employment-based immigrant visas (green cards) are allocated annually, and about an equal number of nonimmigrant (i.e., temporary) H1B employment visas. By contrast there are 480,000 family-based visas (green cards) available every year, almost double the number of employment visas. Both houses of Congress have recognized that if one of the main goals of an immigration system is to strengthen the U.S. economy, then the current visa allocation system needs to be revised.

Depending on one’s perspective, this could be a welcome reform or a negative setback. But in either case, action by Congress on these two key aspects of U.S. immigration law undoubtedly will be accompanied by necessary adaptations in hiring and employment verification.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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