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Update on CIR of 2006

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MAY 24, 2006

Update on Amendments to the Comprehensive Immigration Reform Act of 2006

Amendment that adds antidiscrimination, privacy, and due process protections to the bill's proposed Employment Eligibility Verification System passes. Kennedy amendment to strengthen labor law defeated.

An amendment sponsored by Senators Grassley (R-IA), Kennedy (D-MA), Obama (D-IL), and Baucus (D-MT) that substitutes Title III of the Comprehensive Immigration Reform Act of 2006 (S 2611) passed Tuesday night on a vote of 58 to 40.  Among other things, Title III would create a mandatory Employment Eligibility Verification System (EEVS) to electronically verify the employment eligibility of every worker in the country.  The amendment that passed would add antidiscrimination, privacy, and due process protections to the EEVS created by S 2611.  These improvements do not eliminate the core concerns NILC has with Title III, but they do considerably improve the bill, which is likely to pass the Senate.

The underlying bill would establish a mandatory EEVS without resolving the enormous practical problems of such a system that are likely to lead to widespread errors and abuse.  It would also have the effect of pushing undocumented workers ineligible for the bill's legalization provisions further into the underground economy.  The rights of all workers will be seriously undermined as long as bad-apple employers continue exploiting immigrant workers while facing almost no chance of being prosecuted for providing unsafe working conditions and for violations of labor laws.  Sen. Kennedy offered a separate amendment to strengthen enforcement of labor and employment laws that would have, among other things, clarified that undocumented workers are entitled to back pay as a remedy for being unlawfully fired for union organizing, created an exemption to the requirement that the new H '2C guest workers must leave the country if they are unemployed for 60 days, and increased fines for wage and hour and health and safety violations.  This amendment was tabled on a vote of 56 to 41 -- a defeat for all workers, particularly in light of the increased worksite enforcement contained in S 2611.  (To see how your senator voted, see www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=2&vote=00141.  Note that a "yea" vote is to table the amendment.)

The Title III EEVS Amendment

The EEVS created by S 2611 would build on the Basic Pilot employment eligibility verification program, which has been plagued by significant problems, including inaccurate information entered in the Dept. of Homeland Security (DHS) and Social Security Administration (SSA) databases on which it relies, lack of adequate privacy protections, and misuse of the program by employers.  (More information on the Basic Pilot is available here.)  The program, which currently serves slightly over 6,000 employers, would be mandatory for all employers in the country.  Though the EEVS would still be mandatory under the Title III amendment that passed, the amendment significantly improves S 2611 by providing important worker protections.  It also is an enormous improvement over the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (HR 4437), which passed the House last December.  The staff of Senators Kennedy, Obama, and Baucus should be commended for their excellent work and for tirelessly advocating for these protections.

Provisions from the underlying title remain that will have an adverse impact on workers, including a significant limit on the documents that an individual can present to prove identity when seeking employment.  Specifically, under the title's provisions, to establish that they are employment-eligible immigrants would be allowed to present only an employment authorization document (EAD) issued by immigration authorities, and U.S. citizens would have to present either a U.S. passport or a driver's license or state-issued ID that complies with the REAL ID Act -- even though no state is currently in compliance with REAL ID.  (For more details on concerns with the underlying title, see NILC's "Provisions of the Comprehensive Immigration Reform Act of 2006 that Affect Immigrant Workers").

Note that in addition to the improvements to Title III described below, this amendment also eliminates provisions contained in the original bill that would have required employers to maintain records of all actions taken to resolve any issue raising a "reasonable doubt" as to the validity of an em­ployee's identity or employment authorization, including actions they take when they receive SSA "no-match" letters.  The new language requires employers to maintain records of any action taken and copies of any correspondence they have written or received related to the verification of an individual's identity or employment authorization.

Significant provisions that were added to Title III by the amendment include the following (click this link for a detailed summary of the amendment in chart form):

Antidiscrimination protections.

The amendment adds a new section to Title III dedicated to antidiscrimination protections.  Provisions include:

  • Amending the section of the Immigration and Nationality Act (INA) relating to unfair immigration-related employment practices to explicitly apply to employment decisions related to the new EEVS;

  • Expanding the categories of immigrants who can file an immigration-related unfair employment practices complaint under the INA;

  • Increasing fines for violations of the INA's antidiscrimination provisions;

  • Prohibiting employers from using the EEVS to discriminate against workers; and

  • Providing $40 million in funding for the Office of the Special Counsel for Immigration-Related Unfair Employment Practices to educate employers and employees about antidiscrimination policies.

Due process protections.

The amendment adds some important due process protections intended to ensure that workers can challenge erroneous findings and fix inaccurate information in the DHS and SSA databases.  Provisions include:

  • Requiring employers to provide employees with information in writing (in a language other than English if necessary) about their rights to contest a response from the EEVS, and the procedures for doing so;

  • Creating a "default confirmation" when DHS cannot issue a final notice of employment eligibility within 30 days of the initial inquiry.   The default confirmation will remain in place until the Government Accountability Office (GAO) can certify that EEVS is able to issue a final confirmation of work eligibility to individuals who are eligible for employment within 30 days of the initial inquiry at least 99 percent of the time;

  • Allowing individuals to view their own records and contact the appropriate agency to correct any errors through an expedited process; and

  • Creating an administrative and judicial review process where individuals can contest findings by DHS, and seek compensation for the wages lost where there is an agency error.  However, attorneys' fees and costs were not included in the final amendment.

Privacy protections.

The amendment adds important privacy protections intended to protect against misuse of information and identity theft.  Provisions include:

  • Requiring minimization of the data to be both collected and stored, and creating penalties for collecting or maintaining data not authorized in the statute;

  • Placing limits on the use of data, and making it a felony to use the EEVS data to commit identity fraud, unlawfully obtain employment, or for any other purpose not authorized in the statute; and

  • Requiring the GAO to assess the privacy and security of the EEVS, and its effects on identity fraud or the misuse of personal data.

THE KENNEDY LABOR AMENDMENT

This amendment would have enhanced the enforcement of labor protections for U.S. workers and guest workers.  Opponents argued that there have been no hearings on the amendment and moved to table it. (For a copy of the language, click here.)  Provisions included:

  • Increasing fines and remedies under the Fair Labor Standards Act (FLSA), the Occupational Safety and Health Act (OSHA), and the National Labor Relations Act (NLRA);

  • Eliminating the conflict the Supreme Court identified in its Hoffman Plastic Compounds, Inc. v. NLRB decision (holding that undocumented workers are not entitled to a back pay remedy for being illegally fired for union organizing under the NLRA) by making back pay and monetary remedies for violations of labor and employment law available to all workers regardless of their immigration status;

  • Providing that 25 percent of all fees collected under the guest worker program be dedicated to enhanced U.S. Dept. of Labor (DOL) enforcement of the FLSA, OSHA, and the labor provisions of the immigration bill;

  • Increasing bilingual DOL investigative staff; and

  • Providing that the 60-day period for guest workers to find another job after being discharged be extended where the guest worker claims his discharge was in retaliation for exercising a right guaranteed by the law.

Mandatory EEVS has almost universal support in Congress, while an amendment that would improve the lives of all workers in the U.S. through increased labor protections was rejected.  This highlights the incoherent policies that are at the core of S 2611, which fail to recognize the economic incentives employers have to exploit workers.

The antidiscrimination, due process, and privacy protections that were built into the amendment that passed are a great improvement over the original language.  If this bill is enacted, these provisions at least will provide some basic minimal protections for our civil liberties and for employment-authorized workers who are likely to face discrimination and lose jobs because of the government's inaccurate databases.  However, the notion that a mandatory EEVS program is the panacea that will deter employers from hiring undocumented workers is at best deeply flawed when there is no political will for meaningful enforcement of stronger labor and employment laws.  The lessons learned over the last 20 years with the current employer sanctions system that have resulted in widespread labor law abuses demonstrate that focusing on labor law enforcement is a critical and indispensable component of any true comprehensive immigration reform legislation.