Friday, July 10, 2009


The past several days have been filled with a number of legislative, regulatory and enforcement developments relating to employer immigration compliance and will certainly be remembered as one of the most important weeks in the history of immigration enforcement.

Here’s a quick review.

July 1, 2009

The month began with the announcement by ICE that an I-9 audit found that nearly a third of the 6,000 workers employed by popular clothing retailer American Apparel appear to lack authorization to work in the United States.

Later in the day, DHS issues a bombshell announcement – ICE will audit the I-9s of 652 businesses across the country. That is more than the total investigations that took place in 2009. The companies were not chosen randomly. According to ICE, they were chosen based on leads and information obtained through investigative means. Last April, DHS Secretary Napolitano noted that enforcement efforts will shift from worksite raids to audits and investigations targeting employers and this is one of the first major signs of the seriousness of the White House in carrying out its announced strategy.

July 7, 2009

ICE announced that well known company Krispy Kreme has been fined $40,000 after it found the company employed dozens of illegally present immigrants at a plant in Cincinnati, Kentucky.

Senator Charles Schumer (D-NY), the chair of the Senate’s Immigration Subcommittee told the Associated Press that he will introduce the long-anticipated comprehensive immigration reform legislative package before Labor Day, suggesting that the bill will, in fact, will be debated in the near term. The bill will have major repercussions for American employers including provisions to legalize millions of unlawfully present workers and major new employer compliance rules (such as a requirement that all employers in the country use e-Verify). A major open issue is how the bill will deal with the future flow of immigrants to the country.

July 8, 2009

The White House announces decisions on two major rules issued by the Bush Administration that are currently tied up in the courts. First, the White House indicated that it intends to implement a rule mandating federal contractors use the E-Verify electronic employment verification system. The rule is now set to take effect September 8th. One of the issues that has caused the rule to be challenged in the courts is a requirement that existing employees who are working on a contract be run through E-Verify. The normal E-Verify rules require only new hires be run through the system. A rumored compromise by the Administration on this issue remains unaddressed by the Administration in its announcement.

The White House also announced that it is rescinding the controversial social security no-match rule which outlines specific procedures for employers to follow after receiving such letters and the penalty for not following the procedures is a potential finding of knowingly hiring unauthorized workers. Some estimate that as many as four million people are working on false social security numbers so the potential impact of the rule could be massive.

Later in the day, the Senate approves the first of three important E-Verify amendments to the Department of Homeland Security spending bill for fiscal year 2010. Senator Jeff Sessions (R-AL) introduced Amendment 1373 which permanently reauthorizes the E-Verify program and codifies the federal contractor E-Verify regulation. Senator Schumer attempted to table the amendment. That effort failed by a 44 to 53 margin and the amendment then passed by voice vote. The underlying spending bill already had a three year extension for E-Verify, but critics of the amendment expressed concerns that a permanent program would not receive the same level of oversight as a pilot program. The contractor provision seemed a little less important after the White House announcement, but it also contained a provision specifying that existing employees working on contracts are to be put through the system. This seemingly weakens the plaintiffs’ lawsuit challenging the regulation and may tie the White House’s hands as far as negotiating on that issue.

July 9, 2009

Senator David Vitter (R-LA), is successful in getting a positive voice vote on Amendment 1375 to the DHS spending bill. The amendment would bar DHS from using its budget to revoke the federal contractor or no-match rules. The first part appears to be largely moot as the White House indicated it will move forward to implement the contractor rule. But the second part runs contrary to the White House announcement from the 8th. The White House would seem to have the upper hand, however, since the amendment only bars spending 2010 budget money to rescind the no-match rule. The rule will likely be rescinded in the next few weeks, however, so it should not need 2010 money to make it happen. This could explain the timing of the White House announcement.

Finally, Senator Chuck Grassley (R-IA) succeeded in getting a positive voice vote on an amendment that will give employers the option to run current employees through E-Verify instead of only new hires.

Within minutes of the announcement of the passage of Senator Grassley’s amendment, the spending bill was passed by the Senate.