Immigration has historically been a difficult issue for nations to navigate, and that is no different today. Headlines from around the world signal instability, unpredictability and tightening enforcement —from legislative gridlock in Washington, D.C., pending U.S. regulatory changes aimed at preventing fraud and abuse of visa programs, a patchwork approach to employment verification in the United States, scrutiny of international labor recruitment and an ever-evolving landscape of policies worldwide make an employer’s ability to manage global talent—both in the United States and abroad—as uncertain as ever.
Effective worksite enforcement is central to immigration reform. While U.S. employers are committed to hiring only work-authorized individuals, today they are confronted with a patchwork of federal and state employment verification requirements that is confusing and can be defeated by workers presenting stolen identities. While all U.S. employers must complete a paper-based Form I-9 to establish an employee’s identity and authorization to work in the United States, some may also use E-Verify, the U.S. Citizen and Immigration Services’ electronic employment verification system. Although E-Verify is a voluntary federal program, a number of states have enacted laws requiring some or all employers to participate in the system. The federal government also requires participation of most federal contractors.
Outlook: The federal government already mandates certain federal contractors to use E-Verify. In addition, there are approximately 21 states and a number of localities that require the use of either E-Verify or a specified alternative for some or all employers. Bills in both the House of Representatives and Senate have been introduced in recent years to make E-Verify a mandatory national electronic verification system for all employers. Most recently, on October 25, the House Judiciary Committee passed the Legal Workforce Act which would mandate E-Verify nationwide. Given that Congress has reauthorized the E-Verify program for years and established mandated requirements for the system’s use by federal contractors, and the fact that various state and local requirements now compel certain employers to use the system to verify the work eligibility of new hires, it is conceivable that a mandatory E-Verify program will garner support in Congress as part of a series of measures on immigration reform.
Outlook: Increasing public awareness of human trafficking is putting pressure on governments to act. They, in turn, are looking to employers to help monitor and protect against labor abuses. As global competition for talent accelerates, employers will need to stay on top of this rapidly evolving area of the law.
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