Colorado’s new immigration laws are confusing and often contradict federal laws in how they mandate compliance by employers.

By Emily J. Curray

In 2006, Colorado lawmakers passed several immigration bills that affect employers. I have been asked to provide construction employers with a straightforward and simple process for how to comply with two important new laws, HB 06-1343 and HB 06S-1017. Unfortunately, I cannot do that because of the confusion created by the laws and the difficulties raised by employers’ attempts to comply with them.

HB 06-1343, which went into effect Aug. 7, 2006, requires employers who contract with any government entity in Colorado to verify the employment eligibility of certain employees and their subcontractors’ employees using the Basic Pilot Program. 

The Basic Pilot Program is a Web-based system that uses U.S. Department of Homeland Security and Social Security Administration databases to verify an individual’s eligibility for employment in the United States. As written, the law requires employers to verify the employment eligibility of all employees. 

However, that requirement conflicts with the requirements of the Basic Pilot Program, under which employers must agree not to use the program to prescreen potential employees or verify the employment eligibility of current employees. Last September, Colorado’s Office of Legislative Legal Services issued an interpretive memo, clarifying that employers were only required to verify the employment eligibility of individuals hired after Aug. 7, 2006.

Compliance Issues 

A contractor who does not comply with 1343 breaches the contract and is liable for damages. The Colorado Department of Labor and Employment is also allowed to audit and investigate contractors to ensure compliance with 1343. Such investigations can include onsite inspections. 

Unfortunately, employers’ attempts to comply with 1343 are rife with problems, primarily because of errors in the underlying databases used by the Basic Pilot Program. The SSA estimates that more than 17 million of its records have inconsistencies of names, dates of birth and immigration status. 

Additionally, a 2004 DHS report indicates that SSA’s databases could automatically verify the employment eligibility of less than 50% of noncitizens legally eligible to work. At this time, the only way to comply with 1343 is to use the Basic Pilot Program for all new hires, but employers should be cautioned that they may not be able to rely strictly on the information received from the program.

Additionally, it seems that at least some government entities do not understand the requirements of the new law. The guidance provided by CDLE says the contract itself will have language on how to comply with 1343. However, I have seen at least one contract that required the employer to use the Basic Pilot Program to verify the employment eligibility of all employees and subcontractors’ employees, a practice in clear violation of the Basic Pilot Program.

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Even more problematic is 1017, which went into effect Jan. 1, 2007, and imposes several new requirements on employers. Specifically, the law requires employers to “examine the legal work status” of all new employees and keep the documents used to complete the Form I-9 to demonstrate an employee’s eligibility to work in the United States. 

Within 20 days of hiring an employee, an employer is also required to affirm to the CDLE that it has examined the legal work status of the employee, kept copies of the document and not knowingly hired someone not eligible to work in this country. 

The difficulty with 1017 is that the term “examined the legal work status” is not defined in the law. Federal law requires >> employers merely to review the necessary documents and complete the Form I-9. CDLE, in interpreting 1017, recommends that employers use the Basic Pilot Program and the Social Security Number Verification System, which verifies a match between a name and a social security number. Similarly, the CDLE provides a sample affirmation for employers to use in complying with 1017. 

However, the law itself does not require the use of the databases nor outline any specific form for the affirmation. Complying with 1017 is further complicated by the fact that in so doing, employers may actually run afoul of the federal Immigration and Nationality Act. Under that law, employers are not required to keep copies of documents used to complete the I-9 form, but they are allowed to do so; however, they can do so only to comply with federal law—not state law. 

Another problem arises with respect to enforcement. The guidance provided by CDLE says that in enforcing 1343 and 1017, CDLE investigators will examine I-9 forms. However, there is no federal law authorizing the state to review I-9 forms.

Employers are now faced with the difficult choice of following the CDLE guidance, which outlines suggested practices that reach far beyond what is required by the law, following only the federal law and risking noncompliance with the state law, or creating their own policy and practice, hoping that they are somehow able to comply somewhat with both the federal and the state law.  Noncompliance with 1017 carries stiff penalties: $5,000 for the first offense and $25,000 for second and subsequent offenses. 

Unfortunately, there are no easy answers. Compliance with both 1343 and 1017 cannot be spelled out in a simple to-do list, and employers are not the only ones who remain confused. This is illustrated by the fact that the CDLE was recently scheduled to participate in a conference for employers in Eagle County. However, it pulled out at the last minute, saying that the department itself was unclear about the interpretation and application of 1017. 

This action demonstrates that even those entrusted with the implementation and enforcement of the new laws have yet to make sense out of them. Given the complexity of the laws and the potential conflict with existing federal laws, employers who are questioning how to best comply with these laws are best advised to seek counsel from an immigration or employment attorney.

Emily J. Curray is a partner in the immigration law firm of Stern Elkind & Curray LLP.

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