The following news summaries are compiled from NMHC's Update newsletter. For more information on all of NMHC's legislative and regulatory issues, read the NMHC Update here.
- NMHC/NAA Weigh In on Law Requiring Apartment Owners to Enforce Immigration Law (November 22, 2011)
- Supreme Court Upholds Arizona E-Verify Rule (June 9, 2011)
- Immigration Enforcement: Employer Audits and Proposed Legislation (March 4, 2011)
NMHC/NAA Weigh In on Law Requiring Apartment Owners to Enforce Immigration Law
NMHC/NAA have filed a "friend of the court" brief urging the U.S. Court of Appeals for the Third Circuit to uphold its 2010 decision blocking a Hazleton, PA ordinance that fines apartment operators for renting to undocumented individuals (Lozano v. Hazleton, 620 F.3d 170, 2010 U.S. App. (3rd Cir)).
Our brief argues that the housing-related provisions of Hazleton’s ordinance are preempted by federal immigration law and are therefore unconstitutional.
Earlier this year, the U.S. Supreme Court ordered the appeals court to reconsider the Hazleton case in light of the Supreme Court’s decision to uphold an Arizona employment verification law as a permissible exercise of state "licensing" power expressly authorized by Congress.
Our brief distinguishes Hazleton’s housing-related provisions from the Arizona law because, although the Supreme Court found that Congress had acted to allow states to enact certain employment-related immigration laws, Congress did not authorize states or local governments to regulate housing.
We also explained that the ordinance improperly places rental housing providers in the role of immigration law enforcement. NMHC/NAA were joined in the brief by the Apartment Association of Central Pennsylvania, the Apartment Association of Greater Philadelphia, the Western Pennsylvania Apartment Association and the Apartment Association of Pennsylvania.
Supreme Court Upholds Arizona E-Verify Rule
On May 26, the U.S. Supreme Court upheld a 2007 Arizona immigration law that requires employers to verify the legal status of their workers using the federal government’s voluntary E-Verify program and permits the state to revoke operating licenses from businesses that knowingly hire employees who are unauthorized to work in the United States (http://bit.ly/mplgwJ).
The law had been contested by the U.S. Chamber of Commerce and others who argued that federal immigration law, which makes the E-Verify program voluntary, preempted the state statute. Opponents also argued that although federal immigration policy allows states to enact licensing rules, Arizona’s law is invalid because it revokes licenses but does not grant them, making it an impermissible employer sanction rather than an actual licensing system.
The ruling will likely encourage state efforts to increase employer participation in E-Verify and punish employers for hiring illegal workers. It may also create momentum in Congress, where several bills have been introduced to strengthen E-Verify and expand the number of employers required to use it. Current law only requires firms to use E-Verify to check the status of employees who work on federal contracts.
On June 6, in light of its decision in the Arizona case, the Court ordered the U.S. Court of Appeals for the Third Circuit to reconsider its 2010 ruling that blocked a Hazleton, PA ordinance from being enforced that would fine apartment operators for renting to undocumented individuals and revoke business licenses from employers that hire them.
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Immigration Enforcement: Employer Audits and Proposed Legislation
On February 17, U.S. Immigration and Customs Enforcement (ICE) issued 1,000 audit notices to employers across the country, requiring them to respond within just three days and produce certain hiring records and I-9 forms. An I-9 form, intended to document an employee’s legal authorization to work in the United States, has been required for all new hires since November 6, 1986. According to ICE, the notices went to businesses of various sizes and industry sectors, but the audits were not random; the audits followed the receipt of information obtained through tips or the agency’s investigations.
The latest ICE enforcement initiative, which focuses on employer compliance instead of directly targeting undocumented workers, is a reminder to apartment firms to strengthen their compliance practices by reviewing current legal requirements, auditing internal practices and providing appropriate training for those involved in a company’s hiring process. The Obama Administration’s FY 2012 budget proposal would provide $5.8 billion for ICE, about one percent more than its present funding, which amounts to 10 percent of the Department of Homeland Security’s total budget. (Worker classification issues are on the agenda for NMHC’s Human Resources Forum on April 27-28 in Dallas, TX.)
In related news, several bills have been introduced in Congress to strengthen E-Verify, the federal government’s employee verification program. Rep. John Carter (R-TX) on February 18 introduced the “Jobs Recovery by Ensuring a Legal American Workforce Act” (H.R. 800), which would make the E-Verify program mandatory, and permanent. Rep. Elton Gallegly (R-CA), head of the House Judiciary Committee's Immigration Policy and Enforcement Subcommittee, recently introduced a bill (H.R. 282) that would require federal contractors and subcontractors to screen all of their employees using E-Verify. Current law only requires covered contractors to use E-Verify to check the status of those who perform work on a federal contract. Rep. David Dreier (R-CA) introduced a measure (H.R. 98) intended to address verification errors related to ID theft and false identification documents by creating tamper-resistant Social Security cards.
MAY 6, 2010
Immigration Reform on Senate Agenda
The issue of immigration reform reasserted itself on the Congressional agenda following enactment of a controversial immigration law in Arizona that sparked rallies across the country and comments by Senate Majority Leader Harry Reid (D-NV) that he would move immigration reform this year and ahead of climate change legislation.
Although Reid has since indicated that climate change will come first, immigration reform remains active given the April 29 release by Senate Democrats of a "conceptual" proposal.
Importantly, the proposal states that federal law will preempt all state and local immigration or employment verification laws. This is important to apartment firms that could find themselves subject to a patchwork of state and local laws forcing firms to verify the legal status of their residents or establish other quasi-enforcement obligations for apartment owners.
The plan also calls for biometric Social Security cards to verify the legal status of workers and imposes severe penalties for firms that knowingly employ illegal workers once the new system is implemented.
It is unclear, however, whether the Senate will actually consider an immigration overhaul bill this year given the potential political implications for both Democrats and Republicans heading into the 2010 mid-term elections and other pressing legislative priorities. Reid said he would bring it to the floor this summer if Republican support can be secured. However, Senator Lindsey Graham (R-SC) has pulled back from his partnership with Senator Charles Schumer (D-NY) on the issue, saying that it will not be considered.
Immigration Reform Legislation Outlined
After months of speculation about when—and whether—they would introduce a comprehensive immigration reform bill this year, Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) have outlined a “blueprint” for reform.
In a jointly authored Washington Post editorial, the forthcoming Schumer-Graham bill will require biometric, “fraud-proof” Social Security cards for all employed and job-seeking citizens and non-citizens, strengthen enforcement against illegal immigration, create a temporary worker program and permit legal status for some immigrants who are in the country without authorization.
While President Obama has praised the plan, the outlook for Congressional consideration is unknown because of the November mid-term elections, a challenging legislative agenda and labor’s rejection of a temporary worker program. A House bill (H.R. 4321) introduced last December is opposed by business groups, but supported by labor because it lacks a temporary worker program and relies on a federal labor commission to determine labor needs. House Democrats have said that they will not consider immigration reform until the Senate acts.
E-Verify for Federal Contractors Effective September 8
An August 25, a federal court upheld the government's regulation requiring most federal contractors to use the E-Verify system, the federal government's work eligibility verification program. The rule went into effect on September 8.
The ruling came in a lawsuit brought by a coalition of business groups opposed to the rule. On September 4, the court also rejected the group’s request for an emergency injunction to block the rule from being implemented pending their appeal.
The rule was issued last June by the Bush Administration to implement an Executive Order (No. 12989) announcing the mandate, and was opposed by NMHC. Its enactment had been postponed four times because of the lawsuit and to give the Obama Administration time to review it. On July 8, Department of Homeland Security (DHS) Secretary Janet Napolitano announced that after reviewing the federal contractor requirement, and the E-Verify program generally, the regulation would go into effect on September 8.
Firms with federal contracts, including those that participate in the project-based Section 8 program and provide military housing, are encouraged to consult with an attorney to determine their compliance obligations. More detailed information, including a preliminary analysis of the rule, is available at www.nmhc.org/goto/4976.
E-Verify and Federal Contractors
On July 8, Department of Homeland Security (DHS) Secretary Janet Napolitano announced that DHS will implement regulations requiring federal contractors to use the flawed E-Verify system, the federal government's electronic employment verification program.
The rule was issued last November by the Bush Administration, and was opposed by NMHC. Its enactment has been postponed four times to give the Obama Administration time to review it. The rule will is now scheduled to go into effect on September 8, 2009.
Under the final rule all federal contractors holding a contract lasting more than 120 days or valued at more than $100,000 will have to use E-Verify. It also applies to subcontractors who provide more than $3,000 worth of services or construction. DHS also pointed out that the rule would apply to federal contractors and subcontractors that receive American Recovery and Reinvestment Act (P.L. 111-5) funds.
NMHC's analysis of the rule concludes that firms that have won competitive bidding contracts, including some military housing providers, are likely covered by the rule. However, an apartment firm that receives government funds or participates in a federally-sponsored housing program, such as Section 8, would not be considered a government contractor since the regulation specifically applies to contracts covered by Federal Acquisition Council requirements.
Importantly, not all employees of the firm are subject to E-Verify screening. Only employees involved in projects directly related to the contract are covered.
A coalition of business groups led by the U.S. Chamber of Commerce has vowed to continue to pursue its lawsuit challenging the rule (Chamber of Commerce of the United States of Am. v. Napolitano, D. Md., No. 8:08-cv-03444-AW, filed 12/23/08).
On July 9, the Senate approved an FY 2010 Homeland Security appropriations bill (H.R. 2892) that includes three key amendments related to the E-Verify program.
One would permanently authorize the E-Verify system; without Congressional action, the program is set to expire on September 30. Another would require federal contractors to use E-Verify, and a third would allow covered employers to use it on current employees, not just prospective ones, as is current law (see above).
The Senate measure must now be reconciled with the House version, which simply reauthorizes E-Verify for two years.
While NMHC supports the concept of a federal employment verification system, we have opposed legislative efforts to make E-Verify mandatory because it is too prone to error to be reliable and raises privacy and discrimination concerns. Importantly, E-Verify relies on identification documents that are reviewed by an employer and vulnerable to alteration and theft.
DHS Rescinds "No-Match" Rule, Senate Moves to Block Plan
On July 8, DHS announced that it will propose a regulation rescinding the "No-Match" rule. No-match letters are sent by the DHS or the Social Security Administration (SSA) when an employee’s Social Security number does not match information in the government’s database. Traditionally, these letters have been informational only, but the DHS regulations would have used them for enforcement purposes.
Under the rule, receipt of a no-match letter could be used as evidence that the employer knowingly hired or continued to employ a worker without proper work authorization. Employers would have been required to take certain action upon receiving a no-match letter or face stiff civil and criminal penalties.
The rule was originally issued in August 2007, but it has been blocked since last October by the federal district court with jurisdiction over the legal challenge to the rule. NMHC opposed the rule because no-match letters are generated by a flawed system that is insufficient to prove that an employer knowingly violated the law.
The ultimate outcome of the no-match rule is not clear, however, after a July 9 vote in the Senate to effectively block DHS from rescinding the rule. Specifically, the Senate approved an amendment to the FY 2010 Homeland Security appropriations bill to prohibit funds in the bill from being used to rescind the federal no-match program.
Federal Contractor E-Verify Rule Postponed Until September 30
On June 5, the federal government issued the fourth postponement of federal requiring federal contractors to use the flawed E-Verify system. The rule was issued last November by the Bush Administration, and was opposed by NMHC. The latest postponement delays implementation until September 30.
On January 9, the Justice Department agreed to a month-long postponement in response to a legal challenge by the U.S. Chamber of Commerce and industry groups. It agreed to a second postponement January 28 to give the Obama Administration time to review the rule. The government issued a third postponement until June 30 on April 16.
In addition, on June 2, the U.S. District Court for the District of Maryland extended a stay postponing implementation of the rules for 70 days or until August 16. The stay is the result of a lawsuit brought by a coalition of business groups led by the U.S. Chamber of Commerce challenging the rule.
Additional information on the rule is available at www.nmhc.org/goto/4976.
Worksite Enforcement Strategy
On April 30, the U.S. Department of Homeland Security (DHS) announced a new Worksite Enforcement Strategy that shifts the Administration’s enforcement focus to criminal and civil actions against employers instead of employees. According to DHS, employment is the “root cause” of illegal immigration.
The new strategy, which will be carried out by the DHS's Immigration and Customs Enforcement (ICE) agency, targets companies that knowingly hire immigrants who do not have legal authorization to work in the U.S.
ICE will continue to detain and prosecute workers, but only after taking some legal action against the employer. More information is available at www.nmhc.org/goto/5195.
While all employers are obligated to comply with federal immigration laws, the apartment industry, as a whole, is an unlikely enforcement target. ICE enforcement will continue to focus on industries that pose a threat to national security and businesses suspected of egregious violations.
President Obama’s FY2010 budget proposal includes $112 million to expand and improve E-Verify, the federal government’s electronic employment verification system that is voluntary for most private-sector employers.
E-Verify is set to expire on September 30. Legislation (H.R. 2028) has been introduced that would replace E-Verify with a newly created Electronic Employee Verification System (EEVS). EEVS, which would be mandatory under the proposed legislation, would verify an employee’s legal status by using databases that states currently use for child support enforcement. More information on immigration reform, including employment verification, is available at www.nmhc.org/goto/Immigration.
APRIL 29, 2009
New Legislation Promotes Mandatory Employee Verification System
On April 23, Representatives Sam Johnson (R-TX) and Gabrielle Giffords (D-AZ) re-introduced the New Employee Verification Act (NEVA; H.R. 2028). The bipartisan bill, which was unsuccessfully offered in the last Congress, would create a new mandatory national employee verification process that would eventually replace the government's E-Verify program.
Under the bill, E-Verify would be replaced with an Electronic Employee Verification System (EEVS) that would rely on the use of fewer, more secure identity documents.
EEVS would allow employers to confirm work eligibility by entering employee identification data through their state's “new hire” reporting program, an electronic portal each state currently uses to enhance child support enforcement. EEVS would also replace the paper-based I-9 employment verification system.
E-Verify is set to expire on September 30, creating pressure on lawmakers to address the issue of employee verification this year. NEVA proposes to extend E-Verify until November 2013, and then repeal it when NEVA is fully implemented, approximately 36 months after the date the bill is enacted.
On April 16, the government agreed to postpone until June 30 implementation of rules requiring federal contractors to use the flawed E-Verify system. The rule was issued last November by the Bush Administration, and was opposed by NMHC. The postponement is the third delay in implementing the rule.
On January 9, the Justice Department agreed to a month-long postponement in response to a legal challenge by the U.S. Chamber of Commerce and industry groups. It agreed to a second postponement January 28 to give the Obama Administration time to review the rule.
The Department of Homeland Security says “the extension provides the Administration an adequate opportunity to review the entire rule prior to its applicability to federal contractors and subcontractors." Additional information on the rule is available at www.nmhc.org/goto/4976.
APRIL 16, 2009
Lawsuit Against Apartment Owner Dismissed
The apartment industry won a significant victory last week when a federal judge dismissed a lawsuit against a New Jersey apartment owner for allegedly harboring undocumented immigrants by renting apartments to them (DelRio-Mocci et al. v. Connolly Properties, Inc., U.S. Dist. Court N.J., CA 08-2753 (April 9, 2009)).
The lawsuit was initiated by the Federation for American Immigration Reform, a group championing stricter immigration laws, on behalf of several former residents. They accused the apartment owner of recruiting low-income immigrants and steering them, by immigration status, race and source of income, to dilapidated properties when it was unable to lease apartments to legal residents.
The group alleged that the owner carried out a “scheme” that violated the Racketeer Influenced and Corrupt Organizations (RICO) Act, the federal anti-conspiracy law intended to combat organized crime.
The judge ruled that "renting an apartment to an alien does not amount to harboring." He indicated that proving illegal racketeering would require proof that an owner knew about or recklessly disregarded a renter’s illegal status and concealed, harbored, or shielded that person from detection.
NMHC has followed the case, which may continue if the dismissal is appealed, as just one example of how several anti-immigration groups and local governments have sought to make apartment owners "immigration police" by attempting to penalize them for renting to undocumented immigrants.
Obama Says Immigration Reform Still a Priority
The issue of immigration reform resurfaced last week after President Obama signaled his willingness to pursue comprehensive reform this year. Obama promised to take on immigration reform during his campaign, but many observers believed that congressional action might be postponed because of the recession or other controversial priorities such as health care reform.
Responding to such fears, on April 9, White House Press Secretary Robert Gibbs announced that Obama is committed to starting the comprehensive immigration overhaul process this year. Administration officials acknowledge, however, that the prospect of actually enacting legislation this year is unlikely.
Moving comprehensive reform seems unlikely without a member of Congress to lead the effort. No clear champion for reform has emerged since 2007 when Congress last addressed the issue.
Gibbs said Obama would deal with stakeholders and lawmakers to “figure out the best strategy moving forward” and that any solution would not only have to address border security but also the 12 million illegal immigrants already in the country.
Giving a boost to the President's efforts, on Tuesday, two major labor federations agreed for the first time to work together to support an overhaul of the immigration system. When Congress last considered comprehensive immigration reform in 2007, the labor groups were divided.
The new accord outlined by the AFL-CIO and rival Change to Win endorses legalizing the status of undocumented immigrants already in the U.S. and opposes any large new program to bring in temporary foreign workers. The two groups say that they are open to changing the existing temporary worker system to provide temporary visas to foreign workers based on labor market demand.
Key business groups continue to press for a more robust temporary worker program, however, and they say that the AFL-CIO/Change to Win proposal, which would create an independent commission to assess labor demand, would fall short of meeting employer needs.