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Amendment Puts Immigration Bill Back on the Right Track
A bipartisan amendment put forth last week by Sens. Charles Grassley (R-Iowa), Max Baucus (D-Mont.) and Barack Obama (D-Ill.) is critical to putting immigration reform back on the right track, according to the nation’s home builders.
“Everyone has a stake in reforming the nation’s immigration laws in a fair and just manner that will enhance our border security and provide a sensible process for people to enter our country legally,” said Jerry Howard, executive vice president and CEO of NAHB. “The Grassley-Baucus-Obama amendment would help achieve these aims by improving the bill’s employer provisions to enable small business owners to play a constructive role in the enforcement of the new laws.”
With the Senate expected to take a final vote this week on S. 1639, the Secure Borders, Economic Opportunity and Immigration Reform Act of 2007, NAHB sent a letter to all 100 senators calling on them to support the amendment and designated its passage as a “key vote” because of its importance to the housing industry.
“The success or failure of the new immigration laws will depend greatly on how effectively small business owners will be able to follow and enforce the new rules,” the letter stated. “While NAHB is committed to enacting reforms that will give the federal government the necessary tools to prosecute employers who knowingly violate the law, it is imperative that the enforcement system created is fair, efficient and workable for all U.S. employers. Should this amendment fail, NAHB will key vote in opposition to final passage of S. 1639.”
Through BuilderLink, NAHB’s national grassroots campaign, a toll-free number is available to make it easy for builders to contact their U.S. senators and urge them to support the Grassley-Baucus-Obama amendment.
After dialing 866-924-NAHB (6242), you will be asked to enter your zip code and then be connected to your first U.S. Senate office. When the first call is complete, stay on the line and you will be connected to your second U.S. Senate office. Please note: If you get transferred to the voice mailbox for your first senator, then the system cannot transfer you to your second senator. For more information on contacting your senators, e-mail Molly Murray at NAHB, or call her at 800-368-5242 x8282.
To further underscore the significance of this issue to the housing and small business community, home builders from across the country last week visited dozens of Senate offices urging their senators to vote for the Grassley-Baucus-Obama amendment.
“Our message to lawmakers was simple and direct,” said Howard. “NAHB wants to work with Congress to craft immigration policy that protects our borders without placing an unfair burden on small business owners.”
As the immigration bill now stands, it would punish small business owners by holding them accountable for the hiring decisions made by their subcontractors. In effect, America’s home builders — along with other U.S. employers who rely on subcontractors — would be required to join a national posse charged with verifying the legal status of millions of workers they never hired in the first place and may have never met, said Howard.
“By ensuring that the responsibility for verifying a worker’s immigration status is placed where it really belongs — with the employer who hires and pays them — the Grassley-Baucus-Obama amendment offers a sensible solution to the enforcement issue,” said Howard. “It also makes it possible for employers to act in good faith and to follow the new rules for determining whether a person is in the country legally.”
It is estimated that more than 20% of the home building industry’s entire workforce is foreign-born, making the immigrant population essential to meeting housing demand and sustaining economic growth in this country.
The amendment, Howard added, would also simplify the new federal verification system by giving employers the option of calling a national data base to determine a person’s legal status at the time they are being hired.
Rights and Responsibilities
With the immigration bill S. 1639 taking center stage in the Senate this week, NAHB has prepared the following questions and answers to help association members understand their rights and responsibilities as employers under the nation’s current immigration enforcement policies. The Q&A, which was published last year in Nation’s Building News, explains what employers need to know about Form I-9 and what is involved in the event of an audit:
Q. What is a Form I-9?
A. Federal law places an affirmative duty on employers to verify the identity and work authorization of all persons who are hired. This is accomplished by the mandatory completion of Employment Eligibility Verification Form I-9. Employers are required to keep a completed Form I-9 on file for each of their current employees who were hired after Nov. 7, 1986.
Q. When must the I-9 be completed?
A. Section 1 of Form I-9 (information supplied by the employee) must be completed and signed by the employee at the time of being hired.
Section 2 of Form I-9 (the employer's review and document verification) must be completed and signed by the employer (or an authorized representative) within three business days of the hiring.
Q. How long must Form I-9's be retained?
A. Employers are required to retain each Form I-9 for one year after the employee is terminated, or for at least three years from the date of the hire, whichever is later.
Q. What is an I-9 audit?
A. The Department of Homeland Security's Immigration and Customs Enforcement Agency (ICE), formerly the INS, has the authority, without needing a subpoena, to inspect any employer's Form I-9's to verify compliance and to check their accuracy. This inspection is called an I-9 audit.
Q. Can ICE conduct surprise I-9 audits?
A. No. An investigator can show up unannounced at a work site, but cannot demand an immediate production of I-9 records. Under the law, an employer is entitled to receive a three-day notice prior to the I-9 audit. In the past, it was possible to negotiate with ICE for longer periods before an I-9 audit took place, as much as 10 to 12 business days.
Q. Are builder-employers responsible for their subcontractor employees' I-9 compliance?
A. No. Under the law, builder-employers are not required to complete Form I-9's for the employees of their subcontractors, or to monitor their subcontractors' Form I-9 compliance. However, builders should be aware that they are unlawfully circumventing the immigration laws if they know that any of their work-site subcontractors are employing unauthorized aliens.
Q. Do builders have to produce their subcontractors' employment records or a list of their subcontractors?
A. A builder is not expected to have possession of a subcontractor's employment records at an I-9 audit and is not responsible for securing these records from subcontractors or assembling subcontractors at any location. However, builder-employers are required to cooperate with ICE investigations. Other documents of a builder that are relevant to any investigation can be subpoenaed, including records that a builder possesses pertaining to its subcontractors.
Q. Can a builder-employer have an attorney present during the I-9 audit?
A. Employers who are the subject of an I-9 audit have the right to be represented by counsel. Given the new federal "compliance attitude," and its obvious attempt to make builders-employers responsible for subcontractor hiring practices, it is recommended that an attorney be brought in immediately when notice of an I-9 audit is received. Any investigative demands, including demands for subcontractor information, should then be referred to the builder-employer's attorney for appropriate action and response.
Q. Can incomplete or inaccurate Form I-9's be corrected?
A. If at any time errors are discovered on a Form I-9, corrections can be made. Corrections to Section 1 (employee information) should be made by the employee, or made in the employee's presence, and then initialed and dated by the employee. Corrections to Section 2 (employer review and document verification) should be made by the employer or an authorized representative. Each correction should be initialed and dated by the person actually making the change. Under no circumstances should a Form I-9 ever be backdated or forged. These are criminal violations.
Q. What penalties can be imposed for violations of the Immigration Act?
A. If any deficiency or illegality is found, ICE will issue a Notice of Intent to Fine NIF to the employer. Form I-9 paperwork violations are subject to fines of between $100 and $1,000 per infraction. More serious violations, such as hiring unauthorized aliens, are subject to steeper fines. Arrest and imprisonment are possible for those who are found to have engaged in a regular pattern or practice of willful violations.
Q. Can an NIF be contested?
A. Yes. An employer has 30 days to contest the (NIF) by requesting a hearing before an administrative law judge.
Q. Can anything be done to reduce the penalties for unintentional paperwork violations?
A. Yes. Mitigating factors are considered, including the size of the employer, the employer's good faith, a good compliance history, the seriousness of the violation at hand and whether the employee listed on an incomplete or inaccurate I-9 is actually authorized to work. The presence of mitigating factors can result in a reduction of penalties.
Q. What proactive measures should be taken to avoid an unintentional violation?
A. It is highly recommended that builder-employers conduct regular internal audits of their company's employment records to re-verify the legitimacy and appropriateness of the documents on file, to confirm that all Form I-9's are accurate and complete, and to assure that any temporary work authorizations have not expired.
Q. Where can blank Form I-9's be obtained?
A. To downloand Form I-9's, click here.
Q. Where can instructions for completing Form I-9's be obtained?
A. Detailed instructions can be found in the U.S. Justice Department publication M-274 "Handbook for Employers — Instructions for Completing Form I-9."
Supplemented on Oct. 7, 2005 by the U.S. Department of Homeland Security, Employer Information Bulletin 102 explains "The Form I-9 Process in a Nutshell."
NAHB members are advised to diligently adhere to the requirements of the current immigration law and can click here for more information, or e-mail David Crump at NAHB or call him at 800-368-5242 x8491.
For more information on Senate bill S. 1639, click here and type the bill number in the box in the center screen, or contact Jenna Hamilton at NAHB at x8470.
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