Immigration Enforcement In The Workplace
Immigration reform has become a political tightrope upon which Congress must continue to wrestle after returning from a two-week Easter recess. Through uncertain footing, a compromise immigration bill was brokered by Senators Chuck Hagel (R–NE) and Mel Martinez (R–FL), which was derailed by Democrats led by Minority leader Harry Reid (D–NV), who refused to vote on this compromise bill, simply because it offered little relief to too few prospective immigrants in need of legal reform.
Amidst the wrangling in Washington DC, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have announced a three-phase, multi-year plan to reduce illegal immigration. In particular, the second phase is to build strong worksite enforcement and compliance programs to deter illegal employment. This is seen to complement the department’s border security initiatives by targeting employers of illegal aliens and other criminal networks that support this activity. DHS Secretary Michael Chertoff said “We intend to find employers who knowingly or recklessly hire unauthorized workers and we will use every authority within our power to shut down businesses that exploit an illegal workforce to turn a profit.” ICE Assistant Secretary Julie Myers cited “ICE has no tolerance for corporate officers who harbor illegal aliens for their workforce.”
To put teeth behind the rhetoric, ICE agents just last week raided offices and plants of IFCO Systems, the leading pallet services company in the U.S. with about 5 dozen facilities nationwide, arresting 1,000 employees, and arresting and charging 9 managers with conspiracy to transport, harbor, and encourage illegal workers to reside in the U.S. for commercial advantage. This recent arrest follows one week after that where 9 managers, who were employed by 2 temporary employment agencies HV Connect and TN Job Service, were arrested and indicted for providing illegal immigrants with false documents to businesses in Ohio, New Jersey, and Pennsylvania (that paid them in cash). Three restaurant operators in Baltimore pled guilty to similar immigration charges.
Reports reaching the American Immigration Lawyers Association (AILA) this week stated more ICE sweeps and arrests in New York and New Jersey. Further indications from AILA members themselves revealed that their employer-clients in New York, Ohio, and Illinois are being raided. A marked shift is taking place away from the old strategy of administrative fines as sanctions against employers and towards arrest and arraignment on criminal charges.
The Burden of Employment Eligibility Verification
Long before the recent resurgence of immigration enforcement, employer sanctions were already provided for under the Immigration and Control Act (IRCA). Thus, IRCA makes it illegal for any person to knowingly hire, recruit or refer for a fee any alien not authorized to work and establishes civil and criminal penalties for IRCA violations. However, to protect immigrants’ rights against over zealous enforcement, IRCA created an Office of Special Counsel in the U.S. Department of Justice to investigate and prosecute any charges of national-origin discrimination stemming from unlawful immigration-related employment practices, by asking persons born in other nations to produce more or different documentation from that required of US citizens. The General Accounting Office (GAO) issued a report on March 29, 1990 that the enforcement of IRCA employment sanctions even resulted in employment discrimination, keeping lawful immigrants from employment due to their immigrant status. To avoid litigation, the government defunded the program, leaving employers caught in a quandary, being prevented from rejecting a document that appears to be genuine on its face, while being prohibited from seeking more or different documentation than what would be required from Caucasians or persons who don’t have a foreign accent.
Senate Finance Committee Chairman Charles Grassley (R-Iowa) actually introduced an amendment to the compromise Martinez-Hagel immigration reform bill that would require all U.S. employers to use an electronic verification system to confirm the eligibility of newly hired workers, native born US citizens, naturalized citizens, immigrants and lawfully intending immigrants, alike. The internet-based process is seen to provide either a confirmation or non-confirmation notice within 3 days after an employer submits a name. In case of non-confirmation, the worker is given two weeks to resolve the problem or be terminated. 5,000 companies are now included in a voluntary version of this system in operation since 1996. The program reportedly ran 662,000 in the past 6 months, with about 21,000 necessitating a second manual check. The test would be to expand the pilot to roughly 7 million employers nationwide, with ominous repercussions to business in anticipation of 100s of thousands of non-confirmations. Immigration analysts acknowledge this strict but evenhanded approach to inevitably become part of the immigration enforcement landscape.
True or False: Social Security Numbers
Another key to the DHS/ ICE plan would be the elimination of Social Security abuses that enable undocumented workers to unlawfully secure employment while remaining functionally immune from enforcement. In the case of IFCO Systems, a government affidavit alleged that about 53.4% of the Social Security numbers of roughly 5,800 workers during 2005 were either invalid, did not match the true name registered with the Social Security Administration (SSA) for that number, or belonged to children or deceased persons. Hundreds of thousands of workers are also believed to have registered 000-00-0000 as a Social Security number. Because ICE presently lacks legal authority to routinely access Social Security data to investigate the use of false SS numbers, DHS is requesting legislation from Congress to empower ICE to identify employers that systematically report predominantly fake numbers in order to prosecute employers and employees, alike, for said document fraud.
It is worthy to mention that neither immigration law nor federal tax law presently require a worker to possess a SSN to commence working. IRCA lists the SSN card only as one of possible List C documents to evidence work authorization. The Internal Revenue Code only calls for an application for a SSN to be made within 7 days of the start date for purposes of taxable wages. SSA official guidelines to employers advise that as long as the employer has confirmation that the employee has applied for an SSN in compliance with IRS rules, then the employer should show 000-00-0000 for the SSN until the SSN is obtained. If the number is not obtained in time for filing wage reports (Form W-2), the employer may enter “Applied For” in box D.
When more than 10 Form W-2s in a wage report do not match SSA records, and the no-matches exceed 0.5% of the total number of Form W-2 items in the report, SSA sends the employer a no-match letter. SSA has clearly stated that the letter does not imply that the employer or employee intentionally gave the wrong information and that it must not be used to take any adverse against an employee, such as lay off, suspension, termination, or discrimination. The letter is NOT an immigration enforcement tool, but rather, it is a tool for the SSA to maintain an accurate database to allow the corresponding credit of an employee’s earnings to the right SSN and ensure a proper determination of benefits.
While the Internal Revenue Service (IRS) has the legal authority to fine an employer $50 for each incorrect SSN on a W-2 and up to $250,000 per year, penalty waivers are available where the employer relied in good faith on the SSN provided by the employee. If the IRS advises the employer that an employee’s SSN is incorrect, the employer may have to document solicitation from the employee of the correct SSN for two more years. However, given that administrative errors would exist even without use of false SS numbers by unauthorized workers, Congress will face considerable difficulties establishing a fair and legal way to prove immigration violations simply through use of incorrect SS numbers without a significant number of erroneous confrontations with lawful employees.
The overwhelming majority of falsely documented persons are hardworking family breadwinners and taxpayers (many with US citizen family members), comprising millions who live peaceably among us, yet who provide a sea of anonymity for a proportionately few number of sharks to hide until ready to strike. A huge number of falsely documented workers conceal a proportionately few terrorists, who are a monumental security threat. Thus, Bin Laden continues to boast of his plans. We must drain the sea to catch the sharks! Failure to do so simply ignores a ticking time bomb.
The only way to drain the sea of falsely documented workers is to permit unlawfully present taxpayers and their families to remain in the communities they call home. The economy should continue to benefit from their contributions of hard work and tax revenues, viable families must remain in tact, U.S. citizen spouse and children must not be driven to welfare, and more importantly, falsely documented workers must become legally documented by offering the goal of permanent residence so as to enable our government to locate and corner those now hiding among us, meaning to do harm. Sizeable application fees could be charged and would be gratefully paid by intending U.S. citizens who know the value of the American dream, raising funds for additional border fortification. However, mass removal of undocumented workers would diminish a sizeable payroll tax base presently available for security expenditures.
The May 1st national strike will certainly bring home the economic costs of puristic immigration restrictionism, when millions of Hispanic consumers will withhold their purchasing power and their productive labor from our economy. Yet, these costs don’t even factor the forty billion dollars annually over the next five years that must be doled out by taxpayers in order to deport the vast majority of undocumented workers. Ironically, national security can only co-exist with economic stability by offering immigration benefits to those peacefully and productively living among us, requiring undocumented immigrants to willingly fund border security. Continued delay in building consensus between immigration and security advocates can only serve to compromise the economic well being and security of Americans under the misguided guise of national security in a manner that only Osama Bin Laden could have intended.
Jon Eric Garde, Esq. is a member of the Nevada and New York State Bar Associations and of American Immigration Lawyers Association, has been practicing immigration law since 1992, and has worked with immigrant’s rights organizations as a volunteer since 1981. For inquiries, contact (702) 898-9540, or visit website at www.immigrationjeglaw.com for a consultation.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.