For the second year in a row, rallies and marches targeting immigration reform were organized on May 1, 2007 at numerous cities throughout the United States, much like this one in Denver, CO.

With immigration reform marches and raids on undocumented workers increasingly in the news and an array of possible solutions introduced in federal and state legislation, experts agree preventing unauthorized employment is one key to effective immigration reform.

As the baby boom generation retires in large numbers over the next few years, U.S. employers are beginning to face skill, competency, and possible labor shortages in certain industries, including manufacturing. The Bureau of Labor Statistics estimates that the number of workers who are 55 and older will increase by 49.3% between 2002 and 2012, while the overall labor force is expected to grow just 12% during the same time period.

To add to the labor force uncertainty, a recent survey from Mid-America Plastics Partners (Indianapolis, IN) and PlasticsJobs/Gros Executive Recruiters (Brentwood, TN) reveals that 59% of all respondents are either actively seeking a job within the next year or could be persuaded to leave. Increasing competition to find qualified employees means that the need to hire foreign nationals and legal immigrant workers is a reality that many manufacturing facilities face, and increased penalties for hiring undocumented workers make it crucial for employers to educate themselves on the legal aspects of this type of hiring.

Though the number of immigrants in the United States, legal or otherwise, is difficult to estimate, the 2006 population survey from the U.S. Bureau of Labor Statistics reports that foreign-born workers, including legal and undocumented immigrants and temporary residents, made up 15.3% of the 16-and-over labor force, up from 14.8% in 2005.

According to the National Conference of State Legislatures February 2007 LegisBrief report, U.S. immigration-related bills have mushroomed. In 2006, more than 570 pieces of legislation were introduced in state legislatures around the country. At least 84 bills were enacted, more than double the number enacted in 2005. However, a growing number of uncoordinated state employment verification rules may lead to problems for multistate employers, which stresses the importance of developing a coherent national policy.

Consequences for employers

The government crackdowns by agencies like Immigration & Customs Enforcement (ICE) are designed to protect the workforce from employers knowingly hiring undocumented workers, sometimes for a lower wage, but the penalties also apply to employers who believed they were hiring eligible workers. With the second phase of the Secure Border Initiative, a multiyear plan introduced in November 2005 by the Dept. of Homeland Security (DHS) for reducing illegal migration, employers that intentionally hire illegal aliens face criminal charges and seizure of illegally derived assets. Previous administrative fines were little deterrence for violators, so as of March 2003, harboring illegal aliens is a felony with a potential 10-year prison sentence.

In the 2006 Access to Human Capital & Employment Verification Survey Report conducted by the Society for Human Resource Management (SHRM; Alexandria, VA), 16% of respondents in the durable goods manufacturing industry encountered challenges with the I-9 verification process, which is a document that the DHS requires employers to complete and retain for verification of employment eligibility. And unfortunately for employers, failure to properly complete and retain employment eligibility verification forms for at least three years after the date of hire or one year after termination subjects the employer to civil penalties ranging from $110-$1100.

“Oftentimes an employer has to pay an attorney to get an opinion on questions on potential employees,” says Dennis Gros, president of Gros Executive Recruiters, a company specializing in recruitment in the plastics and packaging industries. “It would be more convenient, effective, and efficient if one federal clearing house, which you could tap into by computer, could let you know whether you should make the hire or not, but that’s not what we have right now.”

Criticisms and suggestions for the current system

What system is currently able to help employers check document validity? The Immigration Reform & Control Act of 1986 authorized a system that now allows the use of 29 different forms of identification as proof of eligibility to work in the United States, including refugee travel documents, voter registration cards, and school records, which increases the number of document types that potentially could be falsified in order to obtain jobs.

Congress introduced a voluntary electronic employment verification system in 1996 called Basic Pilot in order to improve upon the paper-based system, but this program does not verify the authenticity of the identity being presented, or that the identity presented matches information in the Social Security and immigration service databases. Another problem—particularly with the immigration service database—is that it is not updated frequently, so an employer can have an employee who is legal to work, but the information is not entered for several weeks. The Social Security database also contains errors, such as when a woman gets married and doesn’t report the change to her married name.

Basic Pilot also does not protect against identity theft, as reflected in one 2006 worksite raid in which the employer was using Basic Pilot to verify documents of employees who came up as eligible to work, but some employees had stolen those identities. Finally, Basic Pilot is a voluntary program, and according to a Government Accountability Office report, only 13,000 out of about 5.6 million U.S. employers used the system as of January 2007.

Lynn Shotwell, executive director for the American Council on International Personnel (ACIP; Washington DC), believes that employees need to take some responsibility for ensuring that their employment verification data is up to date, but that the federal government must give employees the tools to do this. “As we’re looking to develop an electronic system, we need to make sure we’re not only giving employers the tools, but we also need to verify we’re giving the public the tools it needs to check on its own records.”

To address the situation, the HR Initiative was developed, whose members include ACIP, SHRM, and several other HR associations. The initiative isn’t advocating scrapping the current system, but Shotwell believes that examining companies that have current systems such as biometrics and background screening can help Congress determine how best to expand the current system while considering what new technologies are available. To do this, the initiative proposes that Congress establish a federal advisory board consisting of employers, employees, and technology experts to guide in the creation of the system.

“Employers need the right tools to verify a legal workforce. However, HR departments cannot—and should not—be America’s surrogate border patrol agents,” says SHRM president Susan R. Meisinger in testimony submitted to the House Subcommittee on Immigration this April. “Congress must transform the current paper-based verification process into a state-of-the-art electronic system that is accurate, reliable, cost-efficient, easy-to-use, and shares responsibility among government, employers, and employees.”

As far as willingness for employers to pay a fee for such a service, in the SHRM Employment Verification survey, 92% of respondents said they would support an electronic verification system that was administratively easy to use, created efficiencies, expedited the employment verification process, and created no new employer liabilities, and 54% would still support this if a fee were involved.

Assistance for employers

“Often we do perform background checks at the request of the employer, but the hiring is the employer’s responsibility,” says Gros. “Essentially, we do everything we can to assist the client, but as far as who is responsible for it, the answer is, legally, the employer.”

Custom injection molder Anderson Technologies Inc. (Grand Haven, MI) received a letter about a fraudulent Social Security number shortly after Janet Huyser was hired as human resources manager about five years ago. A man in California received a notice from the IRS stating that he had income from both his actual job in California and from Anderson Technologies in Michigan. When the worker that had been using his Social Security number was confronted, he left the plant. “It’s a shame,” says Huyser. “This was a highly valued employee who must continually uproot his family to avoid being caught. We have regulations that we need to comply with, and it’s very easy to do so.”

Ever since this incident, Huyser does background checks on all new hires through a service called Background Check Professionals LLC (BCPro; Hattiesburg, MS). First, the potential employee must grant approval for the background check, and then a seven-year felony background check is conducted, as well as Social Security verification, which includes all of the addresses with which the Social Security number has been associated. “We do the background check at the same time we do the drug testing and the physical, and give them an offer letter contingent on everything coming back OK. If they think their Social Security number is fraudulent, they are reluctant to sign,” says Huyser. After the I-9 forms are completed, Huyser makes a note in the personnel files that the Social Security number verification and background check met company standards, and she then gives these reports to the employee.

Some staffing agencies providing temporary production workers conduct preliminary background checks, but if, after 90 days of service, an employer wishes to offer full-time employment, Huyser suggests that companies perform their own background check. “It’s so inexpensive to redo the background check and get your own records,” she says. “The USCIS [U.S. Citizenship & Immigration Services, formerly the INS] isn’t going to care about your temporary agency if it discovers a problem. And, if the agency goes under, those records go away. You don’t own those records, plus you need your own I-9s.”

Announcing up front that a company performs background checks may help keep workers with a problem in their job history or with fraudulent documents from even applying. And $20 for a simple background check, which is much less costly than drug tests and physicals, is a small price to pay to ensure the company is in compliance with the law. It’s even more crucial to perform a background check if your company is involved with defense contracts, as the fines and punishments are much harsher.

“We have a saying at BCPro, ‘Hiring the right person the first time,’ which is critical to companies,” says John Allmon, president of the background check company that Anderson uses. “Companies spend a lot of time and money to hire and train people, only to find out a person has a felony on their record. In doing a background check up front, you eliminate a lot of problems.”

Allmon also notes that performing a background check can relieve an employer from the liability of hiring someone who may be a danger to other workers. “If an employer gets sued because of this person, and you can prove that you did due diligence and nothing came up, you’re less likely to get a judgment against you because you took the right steps to ensure a safe work environment,” he says.

BCPro offers its services a la carte for customization to an employer’s requests. A simple driver’s license check from the Dept. of Motor Vehicles in most states costs $20, with a more extensive check including criminal court history and other due diligence costing $54, plus any court access fees. Education verification and previous employment checks cost $15 each plus access fees, if any.

Future solutions

The Dept. of Homeland Security, of which USCIS is a department, hopes to expand its current ICE Mutual Agreement between Government & Employers (IMAGE) program to become the industry standard for employers seeking to comply with federal immigration law. This program was introduced in July 2006 to help employers self-police by implementing IMAGE’s “best hiring practices.” These practices include using Basic Pilot for all hiring and establishing an internal training program on how to manage completion of I-9 forms. The practices also require annual I-9 audits by an external auditing firm, development of a procedure for reporting any violations to ICE, establishing a tip line for reports of unauthorized workers, and submission of an annual report of the program to ICE.

The HR Initiative proposes that Congress adapt one of two systems—a completely electronic employment verification system (EEVS) that improves on the current Basic Pilot system, or a voluntary, secure electronic employment verification system (SEEVS).

In the EEVS proposal, employers would verify identity visually by examining a limited number of acceptable documents. Employee data would be submitted to a database, replacing the current I-9 form, and the verification process would be completed within 10 days. The databases would have to be constantly updated to ensure all information is accurate and current, and existing enforcement efforts and penalties would apply.

If SEEVS were operational, an employer would request a government-issued picture ID and Social Security or alien identification number from the applicant and ask whether (s)he is “enrolled in a secure identity program.” The employer would run the secure identity verification process directly or through a government-approved vendor, and if the potential employee were not enrolled, the employer would either assume the cost of an enrollment or impose it on the potential employee. The enrollment center would check SSA and DHS databases and return with an answer of “yes,” “no,” or “maybe,” with a secondary check for “maybes” and appeal process for a “no.”

Since the HR Initiative proposals are newly developed and testimony was only recently submitted to the House Subcommittee on Immigration, it is difficult to say if any of these solutions will be implemented and what timeframe would be involved, so it is crucial for employers to use existing tools to ensure they are hiring legal workers.

SHRM’s Susan Meisinger sums up the beliefs of many experts by stressing, “If we are serious about stemming the tide of illegal immigrants, we must insist on a new system that uses the best technologies to protect employers, employees, and the public.”

Modern Plastics Worldwide’s Clare Goldsberry contributed to this article.

Tips for hiring foreign nationals By Dennis Gros, Gros Executive Recruiters Inc. Are our country’s immigration laws too lax or too tight? When you need workers, you don’t have time to debate the policy. You’ve got to find a way to manufacture product. Sometimes you hire foreign nationals. The U.S. government acknowledges that the nation’s overall economic growth requires the employment of foreign nationals in various industries, and has provided an assortment of visas to allow this type of employment. Employers need to understand and abide by the laws when determining the most beneficial and appropriate visa category to hire foreign employees. They must comply with multiple agencies that may include the U.S. Citizenship & Immigration Services, the Dept. of Homeland Security, the U.S. Dept. of Labor, the U.S. Dept. of State, as well as state employment offices. As an employer, you may not discriminate on the basis of U.S. citizenship (unless security clearance is required). When you hire a foreign national, he or she will either have a temporary visa or immigrant visa. Also, you must not discriminate against an applicant who holds a temporary visa. A temporary visa, otherwise known as a nonimmigrant visa, is for foreign nationals who intend to work but not live permanently in the United States. The more commonly used nonimmigrant visas are: • H-1B and H-2B Visas: H-1B visas are appropriate for workers in a specialty occupation, and individuals have to have a U.S. bachelor’s degree (or foreign equivalent) to be eligible. H-1Bs are generally limited to a stay of six years. There are also H-2B visas for skilled and unskilled workers performing temporary or seasonal work. Both are subject to the verification by U.S. labor certification that no U.S. workers are available for that position. • L-Visas: These are for foreign nationals who have worked for a U.S.-related company outside the United States for at least one year that the company wishes to bring to work temporarily for its U.S. affiliate. The foreign national is only eligible for an L-Visa if he or she works in a managerial capacity or provides specialized knowledge. The limit for stay is seven years in increments of up to two years. • O-Visas: O-Visas are for select individuals with extraordinary skills in specific professions such as the sciences and business. Individuals in this category must provide objective evidence of their accomplishments in their field of expertise. Employers sometimes find that they would like the nonimmigrant employee to stay on a permanent basis. These individuals, with the help of their employers, must apply for a permanent visa, otherwise known as an immigrant visa. As an employer, you are not required to provide sponsorship. A U.S. employer that elects to hire a foreign national on a permanent basis must prove to the Dept. of Labor that it has recruited for this position, and no U.S. workers are ready, willing, and qualified to perform the described job in the location where that employer is based. Whether you choose to hire foreign nationals on a temporary or permanent basis, it’s important to understand your options and abide by the laws. If you’re not certain, consult your attorney. Remember your objective: to manufacture product as efficiently as possible, unhampered by legal challenges!

Contact information American Council on International Personnel Inc. | www.acip.com Anderson Technologies Inc. | www.andtec.com Background Check Professionals LLC | www.bcpro.net Gros Executive Recruiters Inc. | www.plasticsjobs.com HR Initiative for a Legal Workforce | www.legal-workforce.org Mid-America Plastics Partners Inc. | www.mappinc.com National Immigration Law Center | www.nilc.org Society for Human Resource Management | www.shrm.org U.S. Immigration & Customs Enforcement | www.ice.gov