Capitol Hill

On Dec. 16, 2005, the U.S. House of Representatives passed the Border Protection, Antiterrorism and Illegal Immigration Control Act of 2005 (HR 4437) 239 to 182. HR 4437 would ratchet up interior enforcement and require employers to participate in a new employment eligibility verification system. The bill focuses solely on enforcement and border security and rebuffs President Bush's appeal for a legal mechanism for foreign workers to fill jobs when no U.S. citizens can be found.

Targeting employers

HR 4437's centerpiece is mandatory participation by all employers in an experimental employment eligibility verification program known as "Basic Pilot." The bill would replace the current I-9 hiring process with an expanded and unproven government-run electronic verification program to determine whether potential employees are authorized to work in the U.S. and require a blanket re-examination of all existing employees. The current Basic Pilot program is voluntary and limited to about 3,600 employers and only new hires. HR 4437 would expand the program to cover more than 8.4 million employers and 140 million employees in two years' time.

Additional provisions include:

• An increase in civil penalties for employers who hire undocumented workers to "not less than $5,000" for each worker on a first offense with no upper limit on the fine. Under current law, the penalty can range from $250 to $2,000 per worker.
• For second offenses, penalties of at least $10,000 per unauthorized worker with no upper limit. Under current law, second-time offenses are capped at $5,500 per undocumented worker.
• Third offenses, which range from $3,000 to $10,000 per unauthorized worker under current law, would increase to at least $25,000 per violation.
• Employers who exhibit a pattern of violating the new mandates could be subject to fines as high as $50,000 and one year in prison for each violation.
• Paperwork violations, such as checking the wrong box on an I-9 form, could result in a $25,000 fine. The current fine is $1,000.
• Employers would be required to confirm the documentation of every employee, including some former employees.
• All current undocumented workers would become "aggravated felons"—forcing them to leave the country and preventing them from ever returning. Currently, unauthorized presence in the U.S. subjects aliens to civil violations involving fines and deportation.

This bill essentially would force employers to act as the "document police." The employer community is willing to do its part, but the answer doesn't lie solely in new laws penalizing employers.

HR 4437 also ignores long-term demographic trends and economic realities facing the U.S. and provides no legal channel for employers to access immigrant workers when U.S. workers are unavailable.

On a positive note, an NRCA-supported amendment introduced by Rep. Lynn Westmoreland (R-Ga.) was adopted 247-170. The amendment would cap penalties, permit companies to escape first-offense fines if they made a good-faith effort and exempt firms from penalties for hiring by subcontractors.

Political fallout

The GOP leadership grossly underestimated the employer community's reaction to the proposed sanctions. Faced with the prospect of HR 4437 actually passing, numerous organizations, such as NRCA and the U.S. Chamber of Commerce, worked to defeat the legislation and decided to "key vote" the bill, a process by which groups consider legislators' votes on a bill a key indicator of their future support.

The debate now moves to the Senate, where bipartisan support for The Secure America and Orderly Immigration Act (S 1033) is growing. S 1033, introduced on May 12, 2005, would combine enforcement measures with a guest-worker program. The bill, which NRCA supports, would allow undocumented workers to apply for guest-worker status by paying fines and back taxes; they also would be eligible for permanent residency after fulfilling a six-year work requirement, providing they have no criminal record, do not pose a security risk and learn English.

Some House conservatives refuse to accept such a measure. But the White House holds a trump card—Bush has stated publicly he will not sign any legislation that fails to include a legal avenue for foreign workers to fill jobs that are not being filled by U.S. citizens.

R. Craig Silvertooth is NRCA's director of federal affairs.