NUCA has long supported a comprehensive approach to immigration reform policy — one that would provide incentives for the 12 million-plus undocumented individuals that currently reside in America to come out of the shadows and be accounted for and a policy that would ensure that American employers are not tasked with enforcing federal immigration law. Unfortunately, comprehensive reform is off the table, at least until the start of the 111th Congress, when a new White House will significantly change the tone of debate. However, immigration remains a hot topic in the media and on Capitol Hill, where the fight to protect American employers rages on.

Protecting the Employer

Although passage of legislation to provide a guest worker program is little more than a legislative pipe dream this year, lawmakers on both sides of the aisle seem to agree that the verification responsibilities of American employers should be better enforced. NUCA believes that employers should do their part to ensure that workers are legal, but not be made responsible for enforcing immigration law. Over the past several years, NUCA has maintained that any change in immigration policy should be consistent with the following principles:

The Knowing standard must be preserved so that violations of verification requirements are imposed only on employers who know that their employees are illegal and do nothing about it. Standards such as Reckless Disregard or Reason to Know are too broadly defined and, therefore, too open to interpretation.

General contractors should not be responsible for verification of subcontractor personnel. General contractors who knowingly use subcontractor labor to violate immigration law should be held accountable, but it is unreasonable to saddle general contractors with the liability when they lack authorization to hire or fire a subcontractor’s employees.

Safe Harbor provisions are necessary to protect employers who utilize the government’s verification system in good faith. Such employers should be protected from fines and litigation in cases where the recognized system fails.

Due process must be maintained. Debarment and suspension of employers’ access to federal contracts must be consistent with current requirements in the Federal Acquisition Regulations (FAR).

Flaws in the SAVE Act

In a perfect world, employers would be armed with an electronic swipe device that would easily confirm that a new hire is or is not on the up and up in terms of employment status. In fact, this is one of the proposals on the table. While NUCA supports the concept of an easy-to-use electronic verification system, compliance with such a system must be accompanied by provisions to protect employers in cases where the system fails. Unfortunately, the battle to ensure such protections has become tougher in the second session of the 110th Congress.

Rep. Heath Shuler (D-N.C.) introduced the Secure America through Verification and Enforcement (SAVE) Act (HR 4088) late last year, and the legislation has garnered significant support ever since. The bill would, among other things, provide for the following:

• An addition of 8,000 border patrol agents
  
• Provisions to increase aerial surveillance, satellite and equipment sharing between the U.S. Department of Homeland Security (DHS) and the Department of Defense
• Expansion of the E-Verify program to require compliance by all employers
• Information-sharing between DHS and the Social Security Administration (SSA)
• An increase in the number and training of Immigration and Customs Enforcement (ICE) personnel
• Expansion of detention capacity and expedited detention of illegal immigrants
• The development of a targeted media campaign to inform undocumented individuals of new immigration laws

While, conceptually, the E-Verify system has some merit, the program has not been fully tested in the field, certainly not enough to require all American businesses to comply with it. The SAVE Act would require federal agencies, federal contractors and businesses with more than 250 employees to be compliant with E-Verify within one year of enactment. Employers with more than 100 employees would have to be compliant within two years and those with more than 30 employees within three years. All employers, regardless of size, would have to be in compliance within four years.

Industry Weighs In

NUCA and several construction organizations will continue to encourage Congress to take several things into consideration before acting on the Shuler bill or any other legislation that would further burden employers regarding their verification responsibilities.

In a recent letter to the entire House, a coalition of construction groups stated the following: “Among the concerns we have for the bill are that: it lacks any benchmarks or thresholds for the Department of Homeland Security and the Social Security Administration requiring them to address systematic information deficiencies and a vastly increased workload volume; a mandate for the re-verification for employers to check all current and potentially former employees, that have already been authorized to work under current law; a requirement that employers immediately terminate current employees, if they are found to be non-eligible by the program without any real opportunity for the employer or the employee to address legitimate problems; and no liability protections against discrimination lawsuits for employers who follow the SAVE Act’s mandates.” The letter went on to say that the Shuler bill also lacks strong federal preemption language to ensure that there is uniform immigration policy for businesses to follow.

The U.S. construction industry currently employs more than seven million people, and the Bureau of Labor Statistics estimates that the industry will continue to add at least 180,000 new workers annually. Clearly, developing an immigration reform policy that enhances national security is necessary. It is NUCA’s position that this can be done without unfairly burdening employers with unreasonable and unwarranted employee verification requirements.

Eben Wyman is NUCA Vice President of Government Relations.