November 2005 No. 9

SUMMARY

For over twenty years now,Americans have understood that we are not going to get control An Idea Whose of illegal immigration unless and until we find a way to regulate US employers and their use of immigrant labor. The public understands this Time Has Finally and has continually called for workplace enforcement. Both independent commissions Come? The Case convened during this period to make recom- mendations on immigration policy – one led by for Employment Rev.Theodore Hesburgh, the other by former congresswoman Barbara Jordan – strongly Verification echoed the demand. And employer sanctions were at the heart of the landmark immigration Tamar Jacoby legislation, the Immigration Reform and Control Act, passed in 1986. But, despite this awareness Senior Fellow, Manhattan Institute and effort, we have yet to gain control of unau- thorized immigrant employment. For over twenty years now, Americans have understood that we are not going to get control of illegal immigration unless The reason: although IRCA made it a crime to and until we find a way to regulate US employers and their hire unauthorized immigrants, it failed to give use of immigrant labor. This understanding began to dawn on employers the tools they need to determine who policymakers as early as the mid-1970s, even as the first is authorized to work and who isn’t – a reliable, automated employment verification system. waves of the current illegal influx reached our shores. Former What’s needed: a process not unlike credit-card Senator Alan Simpson later recalled the moment when it verification that allows employers to swipe a card penetrated for him: “Upon becoming chairman of the Senate at the point of hire and receive a response in real Immigration Subcommittee, I was astounded to learn that it time from the Social Security Administration, was illegal to be an illegal alien, but it was not illegal for a informing them – no more and no less – whether US employer to hire one.” And within a few years, an an employee is authorized to work in the United unusually united political establishment – Democrats, States. The system needn’t be Orwellian. It Republicans, the president, local legislatures, the blue-rib- needn’t lead to a national ID. And although, the past two decades make clear, the idea will surely bon bipartisan commission chaired by university president meet with some resistance, a variety of circum- Rev. Theodore Hesburgh, among others – was pushing hard stances – from technical advances to changes in to police business activity. Still, a generation later, we have public attitudes driven by the threat of terrorism yet to gain control of unauthorized employment – a spectacu- – may put the control that has so long eluded us lar failure to follow through on an obvious and uncontested within our reach today. There is no way around insight about national policy. it: as history shows, we cannot control immigra- tion without workplace enforcement, and we It has not been for lack of trying. The issue of workplace cannot control what happens in the workplace enforcement has been before the public all through these without reliable verification. decades. Laws have been passed, money has Meanwhile, despite the changes of the past been spent, American hiring practices have decades, we as a nation now make almost no been severely altered. When it became clear effort to police immigrant hiring. Frustrated by that the first legislative tightening, the 1986 the evident legal loopholes and the prolifera- Immigration Control and Reform Act (IRCA), tion of false documents, the federal bureau- had not succeeded in delivering control, there cracy has little will to pursue worksite was another blue-ribbon panel and eventually enforcement, and the resources devoted to it another landmark law. The regulatory bureau- have dwindled steadily since legislation was cracy proliferated; showy enforcement actions passed. Already in the 1990s, the branch of were tried, at least for a while. And today, the immigration service charged with interior according to one estimate, American business- controls was shifting its focus away from work- es spend more than 13 million hours a year ers to criminal aliens. Then, in the wake of handling employment-related paperwork 9/11, routine employers became still less required by law. Still, our economy is ever important as attention concentrated on “criti- more dependent on illegal labor, with some 8 cal infrastructure,” such as airports and million unauthorized workers employed in nuclear power plants – at the expense of sectors as diverse as agriculture, food process- farms, restaurants and construction sites. ing, hospitality, and construction. Today, the budget for worksite enforcement is less than 3 percent of the budget for patrolling The measure of our failure is all around us. the border. There are fewer than 200 agents Every worker hired at every US workplace – on the job nationwide, and the main branch of more than 50 million new hires a year, citi- government devoted to preventing the hire of zens and foreign-born alike – fills out a form unauthorized immigrants is a little known, intended to screen out unauthorized immi- five-person office with no appropriated budget grants. Virtually all businesses, big and small, that oversees the regulation of 3,625 employ- comply with this requirement: the drill is as ers – out of some 8.4 million in the United routine as a newspaper want ad. But because States. Though arguably the most important of a legal loophole – a glaring and long-recog- tool we have at our disposal to control illegal nized loophole – employers are not obliged to immigration, this program, known as the Basic verify that the information entered on the Pilot, is voluntary – no business is required to forms is correct. Those who wish to inquire participate. And when the officials manning it about its accuracy face a wall of red tape and come across evidence of infractions, they do legal deterrents: they can, for example, be not pass that information along to investigators sued for posing too many questions of a new who could crack down on the offending hire. Employees are asked to produce docu- employers for fear that taking action would ments substantiating the information they sub- drive businesses away. mit, but employers have no reliable way to vet this paperwork – in an age of instant electron- As the nation gears up yet again to reform our ic communication, they eyeball it. And coun- immigration laws, it is critical that we under- terfeit versions of all the required credentials, stand this failure: not just how it happened – from a US passport to a birth certificate, can how it unfolded historically – but why. be purchased for a few hundred dollars in any Conventional wisdom holds cynically that it city in America. was unavoidable: that greedy employers stran-

2 Policy Brief

gled the legislative process and blocked mous ‘Texas Proviso.” Not until the late implementation, that both political parties 1970s, when the current illegal flow began in (each for its own reasons) have a stake in ille- earnest, did most Americans consider making gal immigration, even that controls of this kind it a crime to hire unauthorized workers. – both the intensive regulation of business and the monitoring of identity it requires – are out The Hesburgh Commission of keeping with the American character. The Select Commission on Immigration and Maybe so. But if we cannot overcome these Refugee Policy, headed by Notre Dame obstacles, we will never get control of immi- University president Theodore Hesburgh, was convened in 1978 to gration. And in fact, history shows, the reasons Not until the late 1970s, for our failure are more complicated than these respond to restrictionist when the current illegal clichés suggest. “We tried it, and it didn’t pressures being generat- flow began in earnest, did work,” the cynics say, urging that we give up ed by the new influx. on efforts to police the hiring of unauthorized Composed of sixteen most Americans consider immigrants. But in truth, for all the effort of members – cabinet making it a crime to hire the past decades, we have not really tried members, congressmen unauthorized workers. workplace enforcement. And a variety of cir- and prominent citizens cumstances – from technical advances to – the panel minced no words in its diagnosis or its recommended remedy. “The thrust of the changes in public attitudes driven by the [commission’s findings],” a top staff aide threat of terrorism – may put the control that noted, “is the need for enforcement.” has so long eluded us within our reach today. Members understood that the problem was not immigrants – net-net, they appeared to benefit The Lessons of the Past the nation, if not economically, then in other ways – but rather the illegality associated with The skeptics are partly right, of course: the growing flow. Accordingly, the panel sug- Americans have long been inclined to look the gested, the United States should “close the other way when it came to regulating the back door to undocumented and illegal migra- employment of unauthorized immigrants. As tion [in order to open] the front door a little early as the late 19th century when we first more to . . . legal migration.” Members sug- passed legislation to limit who entered the gested doing so with a multi-tiered system of country, these laws were laxly enforced pre- enforcement measures: on the border, at large cisely to provide employers – in those days, in the interior and, above all, in the work- mostly farmers – the labor they needed to keep place. Their chief recommendation – their their businesses running. These laborers, it legacy – was that the nation should make it a was lost on no one, who were here outside the crime for employers to knowingly hire unau- law and could be deported at any time if they thorized immigrants. objected to wage levels or working conditions. This studied indifference was codified into law Still, for all its insight, the Hesburgh commis- as recently as 1952, when Congress passed sion was not as clear as it needed to be on legislation making it illegal to “harbor” illegal two other critical aspects of immigration poli- aliens, but deemed explicitly that employing cy. Convened at a time of significant econom- them did not constitute “harboring”: the infa- ic restructuring and before the United States

3 had had much experience with the large- Second, and equally fateful in the long run, scale labor migration we know today, the was the fact that even as the commission panel was uncertain about the economic ben- moved to make hiring unauthorized immi- efits of the influx. Members were well aware grants a crime, it hesitated to give business that most unauthorized immigrants came to the tools it needed to determine which work- the United States to work, not to avail them- ers were legal and which weren’t. Members selves of social services or welfare benefits. understood that existing identity cards were Still, the group was skeptical of businesses’ easily counterfeited. They grasped that it claims that they needed foreign workers, and would be difficult for employers to distinguish it declined to raise immigration quotas between citizens and aliens, as new controls enough to reroute the growing illegal flow would likely require. And at a time when tele- into legal channels. It also voted overwhelm- phone credit-card verification was already ingly against establishing an adequately commonplace, they saw that employers would sized guest worker program. And its final probably need some means to inquire about report maintained unambiguously – though it the cards they were presented by employees. had no evidence to support this – that US But while the panel saw these problems loom- employers could, and should, be weaned of ing, it was divided and uncertain about the their dependence on foreign workers. solution. Unlike the recommendation to pun- ish unlawful hires, which passed by an over- It was an impulse that would be repeated whelming 14 to 2, a second proposal for a again and again in the decades to come as “more reliable” mechanism (such as counter- Americans tried to get a grip on illegal immi- feit-resistant Social Security cards) to identify gration. Perceiving those authorized to work in the United States By making it a crime to hire that the problem hardly got through the commission, passing by unauthorized immigrants was illegality, the only 8 to 7. At the time, no one noticed or without creating adequate commission moved made much of this ambivalence. But it too channels for employers to to eliminate it, but would reappear again and again in the years bring in legal workers, failed to see that the to come as the nation grappled with rapidly Congress effectively criminal- lawlessness was a rising immigration numbers, and over time it ized vital economic activity side effect of a legit- would prove to be the principal reason we and business expansion. imate and growing could not gain control. need on the part of American business: a need, driven by demo- The Immigration Reform and Control graphics and economic restructuring, for an Act of 1986 (IRCA) additional supply of low-skilled labor. By Within a year of the Select Commission’s final making it a crime to hire unauthorized immi- report, Congress was moving to enact its rec- grants without creating adequate channels for ommendations into law. The two commission employers to bring in legal workers, Congress members who co-sponsored the legislation – effectively criminalized vital economic activi- Republican Senator Alan Simpson from ty and business expansion. The result, once Wyoming and Democrat Ron Mazzoli, con- their recommendations became law, was pre- gressman from Kentucky – were largely faith- dictable enough: an ever growing under- ful to the panel’s thinking and proposals. ground economy. Simpson, in particular, proved an untiring

4 Policy Brief

champion, spending the better part of the next indomitable. Each subsequent session of decade explaining to anyone who would listen Congress watered the legislation down further. why workplace enforcement – which he envi- And by the time it passed in the autumn of sioned as a form of business regulation – was 1986, the enforcement provisions of IRCA – fundamentally preferable to the raids, round- which also included a measure to legalize the ups and other coercive kinds of immigration unauthorized migrants already in the country – control that had been practiced in the past and were hardly worth the paper they were printed were inevitable on the border. Without his on. They contained no workable mechanism to efforts, it is clear in retrospect, Americans implement their core proscription. Nor did the would never have accepted the idea of employ- legislation provide any means for the workers er sanctions – a historic achievement. But we would increasingly need to keep the econo- Simpson also repeated and exacerbated the my growing to enter the country in a lawful Hesburgh commission’s core mistakes: failing, manner – thus all but guaranteeing a contin- most importantly, to recognize the reality of ued illegal flow even as the prohibition on hir- America’s changing labor needs, even as he ing drove it further underground. hedged ambivalently on how business should determine which foreigners were authorized to The years following the enactment of IRCA work and which weren’t. were predictable enough: the shortcomings of the bill came home to roost with a vengeance. It took five years for the Simpson-Mazzoli bill The federal bureaucracy mounted a national to get through Congress. It was bitterly con- campaign to educate businesses about what tested in both chambers, with fierce opposition was required of them: the I-9 forms to be filled from across the political spectrum, virtually all out by every new employee; the obligation to focused not on making hiring unauthorized scrutinize, in each case, one or two of what immigrants a crime, but rather on how to were then twenty-nine possible identity docu- implement the new prohibition: whether ments; and the mandated procedures for keep- employers would be provided the tools they ing and filing the forms. Outside observers, needed – a counterfeit-proof card or cards and including the Government Accounting Office the means to verify them. Business objected to (now the Government the burden and expense – against its own Accountability Office – IRCA opened the way … and human nature filled interest, it would turn out, since a more reli- GAO), would later the void, generating a vast able system would have been much easier to report a range of underground industry use. Civil libertarians opposed what they saw responses on the part of devoted to the manufacture as the likely invasion of privacy. But it was employers, with some of false credentials. newly empowered Hispanics who in the end quickly adapting to the proved decisive, convincing Congress that a drill, but others, particularly smaller business- secure process, demonized as a national ID es, confused. Then in the late 1980s, when the system, would be discriminatory. Proponents grace period for education expired and the new countered, correctly, that a more reliable sys- requirements kicked in, came the inevitable tem – one that allowed employers to know explosion of false documentation. IRCA rather than guess who was who – would help opened the way with its failure to create a prevent rather than encourage discrimination. secure card or provide employers with a means But together, the naysayers proved to verify the paperwork they were shown – and

5 human nature filled the void, generating a And that, increasingly, is just what the govern- vast underground industry devoted to the ment did. The effort to enforce employer sanc- manufacture of false credentials. Social tions, never exactly robust, peaked the first Security cards, drivers’ licenses, even birth year sanctions kicked in, in 1989. Even then, certificates: by the early 90s you could buy there were only 1,600 agents assigned to the any of them for a few hundred dollars or less. task nationwide. Their mission was ill-defined: they spent as much time and energy going Different sectors of the business world react- after shoddy paperwork as substantive viola- ed differently. The confused grew only more tions. Employers had advance warnings of confused – and as result, more likely to dis- raids and of the government’s intent to fine criminate against immigrant workers. them, with sanctions being levied only for a Overwhelmed by the requirement that they third violation. Doubtless, as is often charged, distinguish between immigrants and citizens, some companies used their political influence unable to make sense of the cards they were to avoid scrutiny. One former Immigration and shown, and with no possibility of asking for Naturalization Service (INS) commissioner help from the government, many did the easy tells a story, off the record, of watching on tele- thing – hired only Anglos. Still other busi- vision as Congress debated a border security bill and being particularly struck by one nesses – an exploitative minority – used the House member’s apparent hostility toward I-9 procedure as a way to intimidate unautho- immigration. Then, later in the day, the com- rized employees, requiring them to go missioner received a phone call from that through the drill, and inevitably rejecting same member, asking that the INS go easier on their paperwork, only when they dared to ask employers in his district. But business resist- for higher wages or better working conditions. ance alone was hardly responsible for the The result, as documented by the GAO in falloff in attention to workplace enforcement. 1990, was widespread abuse of the system, with foreign-looking workers three times as By 1994, when the press and public began to likely as Anglos to experience discrimination focus in earnest on the porous border, work- in hiring. Meanwhile, the vast majority of site crackdowns had already dropped from 40 employers settled into perfunctory compli- percent of INS interior enforcement activity to ance with the new law: asking to see the doc- 20 percent, and since then Congress has uments, filling out the forms, filing them con- explicitly mandated a shift in emphasis away scientiously – and pretending not to know from the interior to the frontier. The subse- what many of them knew all too well about quent shifts toward pursuing criminal aliens the workers they hired. Cynical and self-serv- and protecting critical infrastructure tipped ing? Perhaps, but the law gave them little the balance further. Even the most deter- alternative. Though many, particularly in the mined agents have grown increasingly demor- service sector, were increasingly in need of alized about tracking down business owners immigrant workers, the system gave them no likely to claim, often with justification, that legal way to find or hire this labor, then let they were stymied by false documentation. them get away with going through the motions Through the decades since IRCA passed, of complying with the law. workplace enforcement has never accounted

6 Policy Brief

for more than 10 percent of all immigration to use in determining Even the most determined arrests. By 2004, it was the lowest of the who was authorized to agents have grown increas- immigration service’s enforcement priorities. work and who wasn’t. ingly demoralized about The combined activities of the 200 agents on Where the new panel tracking down business the job amounted to less than 4 percent of the broke new ground: it owners likely to claim, hours devoted to all immigration-related recommended a com- often with justification, investigations. And over the course of the puterized registry that they were stymied by entire year, the service sent out exactly three based on Social false documentation. notices to non-compliant employers. Security data that busi- nesses could tap into to verify information The Jordan Commission provided by employees. Employers would not In the early 1990s, with another wave of have to decide who was a citizen and who restrictionism building, another commission wasn’t; they would not have to eyeball any- was appointed to assess the immigration sys- thing or make any decisions. They would sim- tem, this one headed by former Texas con- ply ask the employee for his Social Security gresswoman Barbara Jordan. Like the number and type it into the computer. Not Hesburgh panel before it, the new US only would this reduce fraud; it also promised Commission on Immigration Reform conclud- to ease discrimination. By taking the burden ed unequivocally that there could be no hope of making determinations about workers out of controlling illegal immigration unless we of the hands of employers and putting it back could wrest control in the workplace. Though squarely where it belonged, on the shoulders far from all that was needed – the Jordan of government, we could pare back the onus group also made recommendations for improv- on business – including the impossible to sat- ing border enforcement and other interior isfy legal responsibility – and improve work- operations, including detention and removal ers’ lives, even as we finally gained control of –“reducing the employment magnet” was yet illegal immigration. again found to be the sine qua non, or, as the new group put it, the “linchpin,” of a compre- It could have been just the mid-course correc- hensive strategy to restore the rule of law. The tion we needed: a thoughtful, targeted fix for panel reviewed what had been achieved under the flawed legislation of the previous decade. IRCA and surprised no one when it gave that There were only two problems, both naggingly effort a failing grade: a decade later, not only familiar. The first: despite some praise from had the unauthorized population grown by press and public, there was also the inevitable several million, but employers were confused question – wouldn’t creating a national reg- and overburdened, workplace discrimination istry put us on a slippery slope toward a was on the rise and the country was awash in national ID card? Like Theodore Hesburgh a sea of false documents. and Alan Simpson before her, Barbara Jordan responded defensively. “It was not proposed What to do? Here too, the Jordan commission by the commission,” she insisted at a news could only repeat the Hesburgh proposal: that conference. “It is not thought desirable by the we develop what the earlier panel had called commission.” But like her predecessors, she a “more reliable” mechanism for employers had no real answer: nothing she could prom-

7 ise that could ease the public’s fears. place enforcement; it added no new bite to Personally, she seemed to think that the reg- the ineffective employer sanctions on the istry could work without cards: employees books; and it made scant progress in combat- would learn their Social Security numbers by ing document fraud. The one step it did take heart and repeat them to employers – and the – authorizing the three pilot projects recom- computerized registry would do the rest, flag- mended in the commission’s report – was lit- ging the fraudulent numbers of unauthorized tle more than a symbolic gesture. By the end workers. The commission itself seemed less of the decade, two of the experiments had certain, and its report struck a cautious mid- petered out, in both cases because the ideas dle course, suggesting that we reduce the they were testing had proved unworkable. twenty-nine different kinds of cards that could And the third, the Basic Pilot Program, be presented in filling out an I-9 to a smaller, remains just what its name implies: a small- more manageable number, thus limiting the scale experiment, largely unknown to the opportunities for fraud and easing the burden public and still far from the mandatory verifi- on employers. cation system we need.

Problem Number Two was where to find the The idea behind the Basic Pilot is sound: the resources to create the new system. A comput- idea at the heart of the Jordan findings – to erized registry was sure to be extremely test the Social Security numbers offered by expensive. There were questions about the workers against centralized databases at the databases and the breeder documents on Social Security Administration (SSA) and the which identifications would be based. Nor was immigration service, now in the Department of it clear – when the idea was first proposed in Homeland Security. The problem is that these 1994 or, in 1997, when the commission issued databases are riddled with inaccuracies and its final report – that we had the technical unable to communicate in a timely way about savvy to make it work. The panel’s answer: it even the most basic information, such as when recommended three pilot projects to test an immigrant on a temporary visa falls out of everything, including whether a secure card status, leaving him unauthorized to work. The was necessary, the accuracy of the databases, result: though verification is relatively fast the startup costs, and how to fight discrimina- and accurate for citizens, it is maddeningly tion and protect civil liberties. slow and inaccurate for those born abroad. The pilot is backed up by no enforcement The decade since the Jordan commission capability or sanctions of any kind. And now issued its findings has brought more disap- that its small, start-up appropriation has run pointment – there has been no progress on its out, it is virtually unfunded – hardly in a posi- principal recommendation – but also some tion to correct existing shortcomings, much rays of hope. In 1996, prodded in part by the less expand. Still, the program has proved panel’s suggestions, Congress passed the extremely popular with the handful of employ- Illegal Immigration Reform and Immigrant ers who use it: finally, the tool they crave to Responsibility Act (IIRIRA). The new law verify the information submitted to them by did not create a national registry; it appropri- employees, reducing their uncertainty and ated no significant new resources for work- legal liability. Imperfect as it is and badly in

8 Policy Brief

need of resources, the Basic Pilot shows that fraudulent – Social Security numbers that employment verification can work, pointing didn’t match names, or were in use elsewhere the way to the future – toward the national in the country – then made worksite visits to computerized registry called for in the Jordan interview suspect employees. Some 3,500 commission report. workers fled the plants rather than undergo questioning, and another thousand were Nor is this the only progress made in the past detained. It was yet another vindication of the decade. After years of diversion and delay, Jordan recommendations – another sign of just the Department of Homeland Security’s how effective it could be to vet workers’ Student and Exchange Visitor Information paperwork and identities against the Social System (SEVIS) is finally up and running. An Security database. Then, with the operation automated, web-based program anchored in a still in full swing, employers, elected officials national database, it uses required input from and others in the communities where the schools and colleges to help the government meatpacking plants were located rose up in keep track of foreign students, and in many protest against the action. It had been so suc- ways, it is a model for electronic employment cessful that it threatened to shut down one of verification. Also encouraging – evidence of the leading industries in the state: more evi- our technical capacity to identify unautho- dence, if any were needed, of another funda- rized workers – was the Social Security mental lesson of the past twenty years – that Administration’s experiment with “no-match” we must combine employment verification letters: alerts sent out in recent years to with immigration reform that provides employ- employers who submitted W-2 forms that did ers with the workers they need to keep their not jibe with SSA records. The letters were businesses open and growing. not followed up with investigations or sanc- tions, but the consternation they caused in What We Know Now the business community confirmed that for all its inaccuracies, the SSA database could Twenty-five years of good ideas, imperfect indeed form the basis of an effective employ- legislation and failed implementation later, ment verification program. what have we learned about controlling illegal immigration in the workplace? The lessons Still another promising development: the are clear: enforcement action known as Operation • Worksite enforcement is still the linch- Vanguard carried out in Nebraska meatpack- pin of a comprehensive enforcement ing plants in 1998. By then, the challenge was regime. Employment verification is and somewhat different: not just document fraud must be the capstone of a broader, many- but worse, a new crime called “identity fraud” layered effort to deter illegal entry into the – workers using stolen or borrowed but valid United States. Until we eliminate the credentials to pose as another person. In an employment magnet – the abundant jobs effort to combat it, INS agents subpoenaed available to unauthorized workers through- meatpacking company records and compared out the US economy – no effort to take con- them with information from Social Security trol of the border or patrol the interior can files to identify individuals who appeared hope to be successful. The Hesburgh panel,

9 the Jordan commission, the architects of With immigrant employment verification, as IRCA: all concurred on this point, and they with credit cards, both a secure card, or were right. Where they fell short was not in cards, and a computerized registry will be their goal, but rather in how they proposed necessary. As the experience of the Basic to achieve it – and how that implementa- Pilot shows, employers are hungry for this tion played out on the ground in the sort of assistance in verifying workers’ iden- American workplace. tities – the fundamental tool they need to • Workplace enforcement cannot hope comply with the law and avoid hiring unau- to succeed unless we also create a thorized immigrants. legal way for the foreign workers we • The technical tools are available, need to enter the country. Enforcement though in need of improvement. The alone will not work, no matter how well Basic Pilot Program, Operation Vanguard, conceived or effectively executed. Put SEVIS, the Social Security no-match let- another way, employer sanctions that crimi- ters: though all fall far short of the full- nalize economic growth and business scale computerized employee registry that expansion are doomed to failure: they will the Jordan commission called for, they only drive that economic activity under- point encouragingly toward the possibility ground, eroding the rule of law in the work- of creating such a registry in the not-too- place and the surrounding community. Far distant future. What’s needed: a clear man- better to recognize the reality of our labor date from Congress to get the system up needs and create legal channels for immi- and running – improving the accuracy of grant workers to enter the country, and then SSA and DHS databases, ensuring the regulate that legal migration with employ- interoperability of the two agencies’ com- ment verification and other tools. This is puter systems, minimizing delays in data the only way to bring business behavior entry, etc. – on a timetable laid out explic- fully into line with the immigration code. It itly in legislation. If it turns out that the is the only way to enlist employers to coop- databases cannot be fully coordinated – erate whole-heartedly in policing the sys- that is what now makes the processing for tem, and is it our only hope of staunching foreigners so much slower and more error- the tide of unauthorized workers. prone than for citizens – then we need to • Employers cannot enforce the law move toward a single, unified registry, the without help from the government. sooner, the better. But arguably the most Employers are the first line of defense – the difficult challenge is not technical, it is eyes and ears of employment verification. political: what to use for a secure card, all But they cannot be expected to determine, the more important today in an age of wide- on their own and without help from the gov- spread identity fraud. Does this inevitably ernment, whether or not an employee is who mean a national ID? Not necessarily. It he says he is and authorized to work. The should be sufficient to require that employ- analogy here is credit card verification: no ees show one of three or four alternative one expects a merchant to determine on his cards – say, a new, secure Social Security own whether a customer’s Master Card is card or a driver’s license (with a Social valid or he is up-to-date on his payments. Security number embedded in it) or a bio-

10 Policy Brief

metric temporary worker visa (also, ideally, revamping and reissuing Social Security with a Social Security number embedded) – cards or drivers’ licenses or both: together, thus avoiding the need for all workers to it will cost billions of dollars – no one yet carry the same type of card. The one com- knows how many. Employers can help with mon requirement: unlike existing Social some of it: it might not be unreasonable, for Security cards and drivers’ licenses, all example, to ask that they buy their own should be biometric, tamper-proof and, ide- simple swipe machines or, as with the ally, machine-readable, allowing for verifi- SEVIS program, contribute toward main- cation with a simple swipe as is routinely taining the computerized system. (Business done with credit cards. will, after all, be saving considerably – both • An innovation for our era: the swipe time and money – when the possibility of card. The Hesburgh and Jordan panels swiping a card renders the I-9 process thought of almost everything, but not per- unnecessary.) But most of the expense will haps the one innovation that could make fall to government. And there can be no employment verification truly practical – cutting corners: not in the startup costs or simple, timely, and reliable. Why a swipe to maintain the system once it is in place. card? American society is increasingly For unless the program is workable – familiar with swipe cards. They are fast and streamlined, reliable, user-friendly, and fast easy to use. A swipe system would elimi- – many employers will not use it, prefer- nate cumbersome requirements to scruti- ring, for the sake of business efficiency, to nize IDs, fill out forms, enter data, save risk operating on the wrong side of the law. paperwork, cull files, and all the rest of the • Verification must eventually be manda- work that accompanies the use of I-9 forms. tory for all employers. Anything less is a From the point of view of privacy protec- recipe for failure, as the Basic Pilot tions, swipe cards hold significant advan- Program has made amply clear. An entirely tages over a system that requires employees voluntary system, the pilot is caught in a to constantly share and repeat a personal classic catch-22: it cannot ask too much of PIN number. They would also help elimi- businesses – or even risk investigating evi- nate the confusion that now occurs because dence of likely wrongdoing – for fear that if of varied spellings of foreign names and employers don’t like the requirements, they even typos in manually entering names and will opt out of the program. Of course, no Social Security numbers into a database. business can be required to participate in Swipe-card verification takes only a few any verification system until it has been seconds, the cost is minimal, and privacy proven effective – reasonably error-free and protections are balanced with ease of use in workable in the real-life circumstances in a way with which all Americans are familiar which employers operate. But once we have and comfortable. created an efficient, streamlined program, • It won’t happen without resources – appealing to employers and effective in significant additional resources. identifying unauthorized workers, we must Improving the databases, connecting the require it across the board – and back that computers, purchasing the card readers, requirement with stern enforcement.

11 • The new system must be accompanied employment verification of the kind under by robust enforcement mechanisms: discussion here: programs based loosely on audits, agents, high-profile prosecutions the Basic Pilot Program, albeit with some and penalties that go beyond the cost of modifications. (McCain-Kennedy moves doing business. According to officials the program to the Social Security involved in the Basic Pilot, its computer Administration and substitutes a swipe system can be programmed to generate card for the I-9 process. Cornyn-Kyl builds leads for investigations: employers whose more explicitly on the pilot and mandates a records are too good to be true, or those massive overhaul of the Social Security whose questionable employees never bother database within a year of enactment.) But to undergo a secondary phase of processing. neither bill goes far enough either in imag- But unlike with the pilot, we must pass ining what’s needed or specifying how to those leads onto agents who can follow up get there – including how to expand a tiny on them. As mandated by IRCA but never experiment by a factor of several thousand. fully implemented, the Department of Labor How to go from the 3,600 employers and the immigration service must work enrolled in the Basic Pilot to the 8.4 mil- together on investigations: as is well known, lion in the US economy? One possibility is employers who violate labor laws also tend to start with one class of worker – new to ignore the immigration code – and com- temporary workers, say, as the McCain- bined enforcement more than doubles our Kennedy bill proposes. Still another ability to bring them to justice. As for option, less likely perhaps to lead to dis- penalties, they must be significantly more crimination: phase the system in sector by severe than those levied in the past – per- sector – the meatpacking industry first, for haps fines calculated as a percentage of example, then hotels and restaurants, then profits or a percentage of revenues. One agriculture. The technology too will have to possible model is the Equal Employment be phased in. Certainly, it is unrealistic Opportunity Commission’s 1970s campaign today to expect most employers to have against workplace discrimination: a few access to biometric scanners, and while we high-profile cases involving huge monetary should surely start issuing biometric cards penalties made national headlines and for- now, in the medium term we will have to ever changed the way business was done. make do with photo identification, relying The good news: in contrast to the 1980s on the SSA to flag potential cases of identi- and 90s, when bad law bred demoralization ty fraud. In no instance should the program in the immigration service, with better law be expanded until it has been proven to be will come an enhanced will to enforce it. workable, as measured by quantitative • The program must be phased-in grad- error rates. But once that has been estab- ually, but not so slowly as to invite lished, we should move as decisively as skepticism or evasion. Both immigration possible – for reasons of fairness as well as reform bills introduced in the Senate this enforcement credibility. summer – McCain-Kennedy’s Secure • The system must be designed to protect America and Orderly Immigration Act and privacy and guard against discrimina- Cornyn-Kyl’s Comprehensive Enforcement tion. A more reliable verification system and Immigration Reform Act – mandate should in itself help to reduce discrimina-

12 Policy Brief

tion in hiring: employers will no longer need was verification by telephone, and even the to determine who is a citizen and who isn’t Basic Pilot, introduced in 1996, initially or guess whose paperwork is likely to be required employers to call in. That program fraudulent and whose is valid. But the pro- later switched to a computer-based system, gram must also include explicit protections albeit a rudimentary one that involved expen- for workers. As customers can have access sive software and time-consuming training, to their own credit histories, so employees only to move eventually to a streamlined web- should be able to verify their own records in based protocol – and with every technological the employment registry – as a way to pro- advance, employer interest ratcheted upward. tect themselves against abusive employers Not only SEVIS, but also the computerized and as the first step in an appeal if the data- US Visitor and Immigrant Status Indicator base turns out to be wrong. Speedy and effi- Technology (US-VISIT) entry-exit tracking cient processing will also be key in prevent- system suggest what is technologically possi- ing discrimination: likely delays and extra ble today. Together, these two programs have paperwork are among the reasons some pioneered new biometric technology, triggered employers now shun immigrant workers. the linkage of several large national databas- Finally, the program must have a well-fund- es, and experimented with new models of ed capacity to investigate and punish dis- information flow and new procedures for sec- crimination in the workplace. ondary vetting of suspect cases – much of which could be appropriated for an employ- Familiar Obstacles – ment verification system. Meanwhile, the pri- vate sector is developing still more advanced, and the Difference Today effective tools, and it should be brought in to help design and even perhaps run parts of a Today as in the mid-80s and again in the 90s, new program. We can greatly improve on the the idea of a vast, mandatory employment ver- Basic Pilot, which still, it sometimes seems, ification system is sure to meet with resistance operates in another century – plagued by in many quarters. The question is whether chronically inaccurate manual data entry, that resistance has eased as times have false positives caused by delayed mail deliv- changed – and there is some reason to be ery, and the elementary missing links moderately hopeful that it has. between SSA and DHS computer systems. Some discrepancies between the databases Today as in the past, there will be four princi- may be harder to fix, but even that cannot be pal challenges: technological obstacles, insurmountable if we are willing to devote appropriating the resources, getting business sufficient resources. compliance, and concerns about the risk of a national ID card. Resources. Just what will it cost to create a reliable program? One estimate by the GAO Technology. The passage of time has plainly suggests that it could take as much as $4 bil- helped with the technological challenges. lion just to replace existing Social Security When the Hesburgh panel first proposed an cards. But even if the total is several times automated system, all members could imagine that figure, would it not be worth it if it

13 allowed us to retake control of our immigra- A national ID. On this score too, surely tion system, reestablishing the rule of law in 9/11 has changed American attitudes. We our workplaces and communities? The securi- now show identity documents at every turn: ty benefits alone would seem to justify the to board trains and planes; to check into expense of what is after all a fairly low-tech hotel rooms; to make purchases; move protocol, long routine in the commercial sec- through office buildings; sometimes, if we tor. Not only that, but obvious improvements live in apartments, even to enter our own in the Basic Pilot could significantly reduce homes. By comparison, an employment verifi- the cost of expanding it: improvements, for cation system would intrude very little, example, in the databases used for initial requiring just a one-time swipe, at the screening that could sharply cut the manpow- moment of hiring. A program that can accom- er necessary for secondary processing. In the modate several different types of cards, with end, today as in the past, it will be a matter of employees free to choose which they wish to political will – but surely that is changing in carry and show employers, ought to help ease an age of international terrorism. concerns. And the system should make use of familiar, existing documents – drivers’ licens- Business compliance. For all the stereo- es, Social Security cards, immigrant and tem- types, the truth is that the vast majority of porary worker visas – not create a new cre- employers would prefer a stable, reliable, dential more likely to fuel fear and resist- legal labor force to the uncertainty that comes ance. The new national standards for drivers’ with depending on unauthorized immigrants. licenses included in the REAL ID Act are The problem in the past, as we have seen, was arguably more than is needed to create a that the effort to implement employment veri- secure piece of identification – and that leg- fication was not accompanied by other reforms islation passed with surprisingly little protest providing businesses with the legal workers from the public. Of course, there will always they needed. Even so, most employers com- be people who will be anxious about the slip- plied with what was required of them in filling pery slope toward a national ID. But today, out I-9 forms – a virtual revolution in national unlike in the past, their arguments no longer hiring practices. And today not only is it more seem a trump card – hardly as strong, for than likely that enhanced enforcement will be most of the public, as the arguments for secu- part of a larger reform package, but many rity and immigration control. employers who depend on immigrant labor seem eager for a streamlined system that Conclusion would eliminate the I-9 burden and reduce their legal liability. Of course, there will After more than twenty years of trying, is the always be exploitive employers looking for a moment finally ripe to enact and implement a way to get around the rules. But once abiding workable employment verification system? We by the law is the norm rather than the excep- can only hope so. As history shows, there is tion, as it is today in many industries, we no way around it: we cannot control immigra- should find it easier to control these bottom tion without workplace enforcement, and we feeders with targeted investigations and more cannot control what happens in the workplace stringent sanctions. without reliable verification.

14 Policy Brief

The system need not be Orwellian. We don’t dation of the Jordan All we need is a process, need a new, national ID card. We don’t need commission in 1994. not unlike credit card veri- agents riding herd on every US business. And And it is likely to be fication, that allows we may not, if we can coordinate SSA and one of the principal employers to swipe a famil- DHS databases, need a new centralized com- recommendations put iar card at the point of hire puter registry. All we need is a process, not forward by the and receive a response in unlike credit card verification, that allows Independent Task real time from the Social employers to swipe a familiar card at the point Force on Immigration Security Administration, of hire and receive a response in real time and America’s Future. informing them – no more from the Social Security Administration, The only question: has and no less – whether an informing them – no more and no less – the climate of opinion employee is authorized to whether an employee is authorized to work in changed enough, and work in the United States. the United States. do we as a nation now have the political will to make it happen? Our Eliminating the employment magnet was the national security and our future as a nation of principal recommendation of the Hesburgh immigrants could depend on it. panel in 1982. It was the principal recommen-

About the Author Tamar Jacoby Tamar Jacoby is a Senior Fellow at the Manhattan Institute and writes extensively on immigration, citizenship, ethnicity and race. Her 1998 book, Someone Else’s House:America’s Unfinished Struggle for Integration, tells the story of race relations in three American cities. Her newest book, Reinventing the Melting Pot:The New Immigrants and What It Means To Be American, is a collection of essays by a diverse group of authors – academ- ics, journalists and fiction-writers on both the right and the left. It argues that we as a nation need to find new ways to talk about and encourage assimilation. Ms. Jacoby has also published numerous articles and essays in a variety of periodicals. Before joining the Manhattan Institute, from 1987 to 1989, she was a Senior Writer and Justice Editor for Newsweek. Between 1981 and 1987, she was the Deputy Editor of The New York Times op-ed page. Before that, Ms. Jacoby was Assistant to the Editor of The New York Review of Books. In 2004, she was confirmed by the US Senate to serve on the National Council on the Humanities, the advisory board of the National Endowment for the Humanities. She is a graduate of Yale University and has taught at Yale, Cooper Union and the New School University.

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demand for pragmatic responses pragmatic for demand Doris Meissner, the former Commissioner of the Immigration and Naturalization and Immigration the of Commissioner former the Meissner, Doris

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