The Senate’s immigration bill, S. 744, just voted out of the Judiciary Committee and sent for a vote by the full Senate, greatly increases potential penalties for employment verification related violations. Under S. 744, the civil fine for a first offense of knowingly hiring or continuing to employ an undocumented worker ranges from $3,500 – $7,500, up from current range of $375 – $3,200. Fines for record-keeping violations increase from the current range of $110 – $1100 per violation to a minimum of $500 for a first offense up to $8,000 per violation for repeat violations. Moreover, while S.744 still requires employers complete a Form I-9 for all new hires, it also mandates use of E-Verify by all employers. E-Verify, the government’s online web based system that checks I-9 information against Department of Homeland Security (DHS) and Social Security Administration (SSA) databases, is currently used by approximately 450,000 employers, a very small percentage of all U.S. employers, including federal contractors who are required to use E-Verify. If passed, S.744 will phase in mandatory E-Verify for all employers as follows : 1. Critical infrastructure related industries will be required to enroll not later than 90 days from enactment; 2. Employers with more than 5,000 employees not later than 2 years after issuance of regulations; 3. Employers with more than 500 employees not later than 3 years of issuance of regulations; 4. All other employers, including agricultural employers, not later than 4 years after issuance of regulations. Importantly, violations of the mandatory E-Verify provisions would be treated as recordkeeping violations, subject to the significant and enhanced civil violations. S. 744 also significantly changes the process to challenge E-Verify non-confirmations, the documentary requirements for verification, and also expands the authority of the Office of Special Counsel to investigate potential discrimination during the employment verification process.
