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Recruiters Caught Between Two Laws

ICE Policies Put Pressure on U.S. Employers
ICE, the United States Immigration and Customs Enforcement agency, has been implementing an aggressive policy of finding and arresting illegal immigrants employed by U.S. companies across the nation. Although many Americans approve of this tactic, it is quickly becoming a problem for HR directors and CEOs who may face criminal prosecution for hiring illegal immigrants.

In a recent article written by Fay Hansen for the online magazine Workforce Management, Hansen writes, “The raids are no longer isolated events in marginal sectors. Instead, enforcement actions by ICE are growing more draconian by the day and now engulf whole industries.”

One expert, according to Hansen, accuses ICE of arresting lower-level employees as a way to produce evidence against recruiting managers and executives.

Quoting an immigration law specialist Hansen writes: "No one has a greater exposure to criminal prosecution than recruiters when employees have been sweat boxed by the government," says Robert Loughran, managing shareholder and immigration law specialist at Tindall & Foster in Houston and Austin, Texas. "The government is making the case that recruiters are conspirators in hiring unauthorized workers."

Will this new threat to recruiters force employers to risk discriminatory conduct in hiring practices? Jorge Lopez, shareholder, corporate immigration law group, at Littler Mendelson in Miami believes it does.

"Policies must be monitored on a jurisdiction-by-jurisdiction basis," says Lopez. "The job of the HR executive has completely changed. Now CEOs are reading about the raids and criminal prosecutions and putting pressure on their general counsel and HR executives."

In many cases, Lopez believes, employers may be forced to risk discrimination charges to avoid breaking immigration laws and a surprise raid by ICE.

While this pressure on recruiters and employers is necessary, if we are to successfully discourage the hiring of illegal aliens, it does put pressure on employers who are caught between a possible discrimination lawsuit and criminal prosecution. The solution is better background checks and protection to employers who follow the rules. For most employers, that means using the E-Verify system.

E-Verify is a voluntary web-based program to help U.S. employers hire only legal aliens. Employers can sign up for this program electronically by e-signing a Memorandum of Understanding (MOU) that lays out the responsibilities of both the employer and the government entities that support the program. This MOU only covers new hires.

Employers use the program to authorize the hiring of immigrants. While the error rate has been about five percent in the past, it has recently improved to less than one percent. The processing speed has also improved making E-Verify a more useful tool for employers.

On November 29, 2008, the E-Verify program will end unless Congress reauthorizes it. Employers who have found it helpful and look to it as a way to protect themselves from ICE prosecution should express their support for reauthorization as soon as possible.

For more information about the latest challenges to recruitment and the E-Verify system, visit the links below.

http://www.cis.org/EVerify
http://www.marketwatch.com/news/story/moving-forward-e-verify-program-check/ story.aspx?guid=%7BDA0BC33A-E85D-4107-AE49-942522AF3CE6%7D&dist=hppr
http://www.workforce.com/section/06/feature/25/75/35/index.html

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