A 26-page outline (pdf) of a new proposed immigration overhaul bill would require all employers to use a newly-created Biometric Enrollment, Locally-stored Information, and Electronic Verification of Employment (BELIEVE) System as a means of verifying employee work authorization. Within 18 months of the proposed bill’s enactment, the Social Security Administration (SSA) would be required to issue biometric social security cards, which within five years would serve as the only acceptable document employers could use for employment verification purposes. The proposal also calls for a 300 percent increase in monetary fines against employers that knowingly hire illegal workers, and enhanced civil and criminal penalties against employers that engage in egregious labor violations involving unauthorized workers.

The proposed biometric social security card would serve only as evidence of lawful work authorization, not proof of citizenship or lawful immigration status. It would include a photograph and an electronically coded micro-processing chip that would contain a unique biometric identify for the authorized card holder. Once the BELIEVE program is fully implemented – estimated to be about six years after the proposed bill’s enactment – employers would be required to swipe the cards from prospective employees through a card reader to confirm the cardholder’s identity and work authorization. During the transition period, employers would continue to comply with all current employment verification laws, including E-Verify. Employers would be allowed to voluntarily use the BELIEVE system before it is declared mandatory.

Under the BELIEVE system, employers would be required to swipe the biometric card of a prospective employee no sooner than the date of hire, and no later than the third business day after the employee has reported for duty, or no later than the first day following recruitment for employment or any time an employee is required to provide self-verification. The system would provide employers with a response within 24 hours. In the event of a denial, employers would be required to provide the employee with a written notice form (to be developed by the Department of Homeland Security (DHS)), stating the reason for denial, the right to contest the denial, and how to do so. The bill would direct the DHS and SSA to develop details of an administrative review process. Employees would be entitled to lost wages if it is ultimately determined that the denial was caused by erroneous system information and not by an act or omission by the employee. Additionally, employees would be entitled to sue their employers if the work authorization denial was caused by an act or negligence on the part of the employer. Employers, however, would be protected from liability for employment-related actions taken with respect to information provided by the BELIEVE system.

The bill would establish protections to prevent misuse of the BELIEVE system. In addition, the bill would direct the Government Accountability Office (GAO) to conduct a study every two years to evaluate the accuracy, efficiency, integrity, and impact of the system.

In terms of employer penalties, the proposed bill would increase civil monetary penalties by 300 percent for employers that knowingly hire an authorized worker, hire an illegal worker without verifying employment eligibility, continue to employ an unauthorized worker once the employer is made award of the worker’s work status, or violate the anti-discrimination protections related to employment authorization. The proposal would allow a mitigation of certain increased penalties for small employers, and an exemption from penalties for a first violation where the employer can prove it acted in good faith. Moreover, the proposal would include a safe harbor provision for employers that unknowingly hire or continue to employ unauthorized workers through a subcontractor.

One of the many fee sources used to pay for the BELIEVE system include an employment authorization system fee to be paid by all employers that seek to petition for an employment-related immigration benefit for non-citizen workers, and fees paid by employers for violations of the act itself.

In addition to the BELIEVE system, the proposed bill would establish provisions addressing egregious labor law violations against unauthorized workers. Under the terms of the proposal, victims of egregious labor violations would be provided with legal incentives to cooperate with law enforcement to report employers. These employers would face civil sanctions and prison sentences.

The proposed immigration bill would revise the work visa categories currently in place. For example, the proposal would include fraud and abuse protections for current temporary high-skilled work programs, including those established under H-1B and L-1 visas. With respect to lower-skilled workers, the bill would include provisions requiring businesses to seek citizen workers before resorting to foreign labor. In addition, the H-2A temporary agricultural visa would be amended to adopt the proposals set forth in the Agricultural Jobs, Opportunity, Benefits and Security Act (AgJOBS). Employers hiring non-agricultural seasonal workers under the H-2B program would be required to first seek out citizen employees, and to pay them wages greater than what is currently paid to workers in these positions.

The proposal also creates a new provisional visa category (H-2C) for non-seasonal, non-agricultural workers. Additionally, the proposed bill would create a Commission on Employment-Based Immigration for the purposes of studying the country’s employment-based immigration system and making recommendations.

In a probable attempt to garner bi-partisan support, the proposal calls for increased border security before any steps could be taken to allow current illegal aliens to apply for citizenship. Given the current focus on financial reform and the push for the passage of climate legislation, it is uncertain if this immigration bill, once formally introduced, will receive much attention this year.

Photo credit:  David Franklin