Oppose Excessive Employer Sanctions that Eliminate Due Process or Consideration of Mitigating Factors Such as Debarment of Federal Contractors for “Any” Immigration Violation

Background:

• While none of these provisions have made it into law yet, several proposals introduced in the 110th Congress would impose debarment for government contractors who commit “any” immigration violations. “Any” in this case includes paperwork or filing mistakes.  This becomes increasingly vital because Congress is considering making general contractors responsible for the immigration compliance of their subcontractors and suppliers. The bipartisan legislation passed by the Senate last year included both provisions.*  The Senate this year approved an amendment that would impose a 10-year debarment (without any opportunity for appeal) on a federal contractor who commits a single violation of the Immigration and Naturalization Act.**
• While the goal of immigration legislation is to secure the borders, a significant focus of the legislation is to heavily sanction employers who hire illegal workers. Unfortunately for employers, Congress has not significantly differentiated between those who flagrantly violate the law and those who unknowingly violate the law. AGC is not defending anyone who flagrantly violates the law, but we do expect penalties to be phased in and commensurate to the violations, as tools to ensure fraudulent documents are tested for accuracy, reliability, and usability.  Mandatory debarment for a single violation, without consideration of mitigating factors, and without an opportunity for appeal, will be disproportionately excessive in its application. 

*S. 2611 passed Senate 5/25/06
**S. Amdt. 148 to HR 2 (Sponsored by Sen. Sessions, AL) passed 1/25/2007

AGC Message:

• Immigration Violations Already Carry Stiff Civil and Criminal Penalties, Including Debarment of Habitual Violators.  These penalties are set forth under Executive Order 12989 (February 15, 1996), the Federal Acquisition Regulations (FAR 9.406-2(b)(2)), and under the numerous procedural due process safeguards set by the FAR.
• Current Law Provides Discretion, Consideration of Mitigating Factors, and Fines for Relatively Small Paperwork Violations of Immigration Law. Congress should preserve due process and not impose penalties that would create maximum penalties for minor violations (e.g., mandatory debarment). For instance, the Senate-passed amendment mandated a 10-year debarment without judicial review for an I-9 paperwork violation, even if the employee was legally in the country.
• Debarment Will Force a Contractor to Close their Business.  Congress Should Preserve Due Process, Consider Mitigating Factors and Preserve Judicial Review of Any Decision to Debar a Contractor.  Prohibiting judicial review denies the fundamental due process rights of contractors that currently exist within the debarment determination process. The FAR suspension and debarment rules contain well established and defined decision-making criteria and legal safeguards guaranteeing that all rights are protected and laws are followed without bias.  This helps ensure that all companies are treated equitably and that penalties imposed are commensurate with the violations committed.

• 06/07/2007 - AGC Urges Senate Not to Remove Due Process of Immigration Bill
• 03/05/2007 - AGC Urges Congress to Oppose Efforts to Inject Debarment Standards or Procedures Into the Debate Over Immigration Reform
• 01/25/2007 - AGC Urges the Senate to Oppose the Sessions Debarment Amendment (AGC Key Vote)

AGC Opposed Legislation:

• AGC Key Voted Against Passage of S.AMDT.148 to H.R. 2, the amendment was removed prior to becoming law.