There is virtually no area of the public or private sector off limits in the immigration reform discussion. The issue of immigration reform has taken on a more pressing tone, as government entities attempt to balance the demands of a global (and seemingly borderless) marketplace and homeland security.

Congress continues to struggle with immigration reform and at the heart of the issue – the economic and security impacts of reform. Comprehensive immigration reform recently failed to pass in Congress, a sign of the continued impasse between the Administration, the Congress, and interested stakeholders – including businesses and government contractors

Following the attacks in September 2001, hiring policies for foreign laborers (by either private industry or the government) and tracking aliens became a high priority for the federal government. Following the inception of the Department of Homeland Security, jurisdiction over employment of foreign laborers was transferred to the Department’s Immigration and Customs Enforcement (ICE) division. Businesses must document that any foreign-born individual employed is either a naturalized citizen or has a permit to work in the U.S.

Government contractors, businesses small and large, have a lot on the line when it comes to immigration reform. Whether it be hiring practices, additional documentation requirements, or debarment for violation of immigration laws, contractors will – under any scenario – have additional responsibilities.

Current practice for verifying employment eligibility

Even before the most current efforts to reform immigration policy, the government implemented a voluntary program to verify employment eligibility. In 1997, the federal government initiated the Basic Pilot Program, a free program to conduct verification checks using the Social Security Administration (SSA) and the United States Department of Homeland Security databases. The program verifies the employment eligibility of all newly hired employees by utilizing social security numbers (SSNs), Alien Registration Numbers, and I-94 Numbers.

The program is intended to remove the uncertainty that accompanies document review during the I-9 process. If new hire information does not match the information contained in the databases, the employer is prompted to reconfirm documentation and identification. Employees are supposed to contact Homeland Security within ten (10) days to clear up any problems.

Aside from verifying the eligibility of all newly hired employees, the system is supposed to improve the accuracy of wage and tax reporting and attempts to protect authorized domestic workers.

In 2003, the President signed legislation extending the program through November 2008 and expanding it to encompass all 50 states and the District of Columbia. The program remains voluntary and participation relatively low. Approximately 5,000 employers throughout the country use the program to verify the eligibility of all new hires.

Participating employers must enroll and sign a Memorandum of Understanding (MOU) that clearly articulates the responsibilities of the SSA, DHS-USCIS, and the employer.
Currently, the program lacks a certain level of credibility given the low participation rate. Over the past year, there have been efforts to require companies with federal contracts to utilize the Basic Pilot Program.

Unfinished business: Comprehensive immigration reform

Perhaps one of the greatest challenges for the Administration and Congress remains the sheer magnitude of the task at hand. The number of illegal immigrants in the United States surpasses the 10 million mark, with the majority of those individuals in the workforce – regardless of their immigration status and the government’s inability to locate them.

The immigration reform debate is not just about border security, but about labor relations. The President’s proposal for comprehensive immigration reform called for an expanded and mandatory employment eligibility verification system and would have established strict penalties for companies continuing to employee (or hire) illegal workers. Government contractors or businesses employing illegal workers would be exempt from pursuing procurement opportunities.

In May 2007, the Comprehensive Immigration Reform Act of 2007 (S. 1348) was introduced in the Senate. The massive legislation incorporated 17 titles (or acts) and as with any legislation of this magnitude, it is almost no wonder the measure failed to pass the Senate.

The bill included language for debarment of employers and contractors who are repeat violators [of hiring illegal immigrant workers] or are convicted of a related crime. In both cases, the debarment would have been for a period of five (5) years. Those employers without government contracts would be placed on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs. Federal contractors could be debarred from receipt of new contracts or have alternative action taken against them.

The bill would also have required contracts with foreign companies (meaning that the company’s headquarters are located outside of the United States) to be reported to Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives, within 60 days of initiation, regarding the Secure Border Initiative.

In lieu of comprehensive reform

While Congress and the Federal government have failed to reach agreement on immigration reform, states are stepping up and enacting laws. Almost immediately following the death of the most recent immigration legislation, Governor Janet Napolitano (D-AZ) signed a law that established significant penalties for Arizona businesses that knowingly hire undocumented workers. Napolitano stated that she could hold out no longer wait for Congress or the Federal government to enact reform measures.

Since the law in Arizona was signed, two major business groups representing farmers, manufacturers, contractors and other businesses sued to block the law from taking effect in January, arguing that enforcing immigration laws is a Federal responsibility.

Senate leadership has discussed trying to act on individual titles of the comprehensive legislative package; however, they have been unsuccessful in doing so.

The National Association of Government Contractors supports reform efforts that streamline the process for employers and provide enforcement education for business owners.