Should The Government Force Businesses to Enforce Immigration Laws?

Illegal immigration, and the status of illegal immigrants (or undocumented workers if you want to be politically correct), is a divisive issue on the American political landscape. One group wants to provide all sorts of benefits to illegal immigrants and a path to citizenship and the opposing group wants to deport many of those same illegal immigrants and tighten up border control so illegals can’t get into the country. Many believe some Democrats want illegals to stay because these illegals, once they get their path to citizenship, will vote Democrat. Many believe some Republicans want illegals to stay so these illegal workers can be exploited by American businesses, which rely on low cost labor to fuel profits.

Unfortunately, it seems people on both sides of the argument agree on one thing—American businesses, including 30 million small businesses, should be in the business of ensuring that they do not hire illegal immigrants, should be engaged in all manner of time consuming documentation to weed out illegals, and should be punished heavily if “God forbid” an illegal immigrant ends up on the payroll. But let’s take a closer look at this requirement that the mom and pop business owner now have to be the policemen against the 20 million-strong horde of illegals now in this country.

Double Standard – Businesses do not control the border, the government does. More specifically, the responsibility for controlling our borders, and who is let into this country and who is not, falls on our Federal government. No one would argue that our Federal government has done a miserable job of keeping illegal immigrants out of the country. Further, many illegals who manage to make it across the border are provided a myriad of benefits by our government—from driver’s licenses, to education, to healthcare, to welfare and even to housing subsidies (yes, I know some people will argue that the benefits illegals received are much less than those of a regular citizen, but that is irrelevant—illegals are still given benefits by our government). Some in the government even crow about the fact that illegal immigrants who use fake social security numbers actually pay taxes and social security—a huge boon for the government who will never have to pay out social security to these same illegal immigrants.

So, the government can provide education, healthcare, driver’s licenses, welfare and even housing to illegal immigrants. Further, the government is happy to collect taxes and social security payments on illegal immigrants who work in this country. And the government does all of this with absolute impunity. But if the dry cleaner down the street from you inadvertently hires an illegal immigrant, that poor small business could be hit with huge fines, his or her business shut down and could even end up in jail.

Not So Simple – Some people say, “Well, let the employers verify eligibility to work in this country. It only takes a minute.” By law every employer must have each employee complete a Form I9. Form I9 is nine pages long. There help in case anything on this form confuses you (and it is very confusing). No problem. The US Citizenship and Immigration Service has available a guide called “M-274-The Handbook and Guidance to Completing Form I9” to make it all perfectly clear. Except that handbook is 70 pages long. Apparently, I9s are not so simple after all.

The premise of Form I9 is that you, as an employer, should use this I9 to determine if the employee is actually eligible to work in the US. But it is a lot more complicated than just getting the employee’s Social Security number. In fact, Form I9 states that an employee does not have to provide a Social Security number. Doing so is optional. The form also says that, “You may not ask an employee to provide you a specific document with his or her Social Security number on it. To do so may constitute unlawful discrimination.”

So what can an employee provide you so you know he or she is eligible to work in the US? Glad you asked. That employee could provide you with one or more of the following: US Passport, US Passport Card, Permanent Resident Card, Alien Registration Receipt Card, Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa, Employment Authorization Document that contains a photograph, Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RM, Driver’s license or ID card issued by a State, ID card issued by federal, state or local government agencies or entities, School ID card, Voters registration card, US Military Card or draft record, Military Dependent’s ID card, U.S. Coast Guard Merchant Mariner Card, Native American Tribal Document, Canadian Driver’s License, School record or report card, Clinic, doctor or hospital record, Day care or nursery school record, Certification of Birth Abroad issued by the Department of State (Form FS-545), Certification of Report of Birth issued by the Department of State (Form DS-1350), Original or certified copy of birth certificate issued by a State, county, municipal authority, or territory of the United States bearing an official seal, U.S. Citizen ID Card (Form I-197), Identification Card for Use of Resident Citizen in the United States (Form I-179), Employment authorization document issued by the Department of Homeland Security and/or a social security card.

You as the employer cannot specify what documents the employee will give you, but whatever the employee gives you, you must examine those documents, satisfy yourself the documents are valid and real, and then sign the I9, attesting under penalty of perjury, that the documents appear to be valid and that the employee appears to be eligible to work in the United States. Of course this attestation is based on examining documents that most of us have never seen. And what if you do it wrong? Well, you can be fined for completing I9s incorrectly, so if employee you hire to do payroll doesn’t do a good job, you could be facing tens of thousands of dollars in fines, possible criminal prosecution, time in jail and loss of you business.

Just Use E-Verify – Yes the US Citizenship and Immigration Service has a program called E-Verify. The government even advertises E-Verify as “E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. E-Verify is fast, free and easy to use – and it’s the best way employers can ensure a legal workforce.” Great! No problem. Forget all this I9 and looking at 30 different documents. All you need to do is get the Social Security number from the employee, and just like running a credit card, if the SS number is good, your employee is legal and you don’t have any worries. If the SS number is no good, then good by employee. Except, not so fast. Except that’s not how it works.

Even if you use E-Verify, you still have to complete the I9 process which could involve you examining any one of 30 documents, and attesting under penalty of law as to their appearance of validity. Even if the employee shows as legal for employment through E-Verify you could still be fined if you didn’t complete the I9 correctly. Also, you cannot use E-Verify until AFTER you have already hired the employee. Then, if there are problems (what E-Verify call a Tentative Nonconfirmation) you cannot terminate that employee based upon the information from E-Verify—you have to work with that employee to try to figure out why he or she did not pass muster, a process which could take months. In fact, if you do terminate the employee based upon an initial failure from E-Verify, you could be subject to discrimination and fined or sued by the Federal government. Also, if the employee passes E-Verify you’re still not off the hook because you could still be fined or even sent to prison for hiring illegal immigrants, because E-Verify does not protect you from enforcement by ICE. But in making your assessment as to whether or not that person is or is not entitled to work in the US, you can’t use any evidence that might be discriminatory, such as the fact the person barely speaks English and is obviously from another country.

As a result, many employers are optioning not to use E-Verify because if there are problems, you cannot terminate the employee anyway. The reality is that our government has failed to secure the borders and when someone get’s across the border, our government provides that illegal immigrant with a host of benefits, but if you hire that person, you’re in for big fines or off to jail. And now you as an employer need to be a document examination expert so you can do the job the Federal government failed to do in the first place. Finally, if you never hire an illegal immigrant, you could still face fines because just failing to complete the I9 the way the government wants you to complete them, will get you fined, even if the employee is rightfully eligible to work in the United States.

SMALL BUSINESS IMPACT: The Federal Government, through its policy of forcing employers to verify an employee’s eligibility to work in the United States, and basically being the “border patrol” agents for the government, is burdening small business with complex, time consuming paperwork that if not completed correctly could result in fines, going to jail or loss of one’s business. Small businesses waste huge amounts of time on I9 compliance when many are already working 12 and fourteen hours a day to make their businesses successful. Further, when US Immigration Service comes knocking, small business don’t have the resources of huge corporations who can enlists banks of attorneys to fight the government. As a result, there is little choice but simple to pay whatever fines and penalties are assessed, even in cases where the small business has never hired an illegal immigrant.

Author: Michael Manahan

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