November 2005 No. 6 SUMMARY Gaining control of illegal immigration to the United States would require Immigration large-scale reforms to the notoriously ineffective employer sanctions system. Enforcement at Such changes should make it easier for employers and migrants to comply the Worksite: with the law, and more punitive for those who do not. Making it Work Marc R. Rosenblum A number of reform strategies have been proposed, each with its own I. Introduction economic and privacy costs. These include consolidating identification Most unauthorized immigrants enter the United States in pur- documents and making them more suit of employment, and analysts view an effective employer secure; mandating application screen- sanctions regime as an essential element of immigration con- ing through government databases; trol. Employer sanctions are also attractive to some advocates devoting additional staff to worksite of more open policies as part of a “grand bargain,” which enforcement; increasing penalties for combines tougher enforcement with more legal flows. Yet US noncompliance; and streamlining and employer sanctions laws have been notoriously ineffective strengthening the enforcement because employers lack tools to verify applicants’ eligibility, investigators lack tools to identify non-compliant employers, process to increase investigators’ and (for these and other reasons) employers view the threat of worksite access. actual punishment under the current system as an acceptable business expense. Two additional possibilities include creating a centralized screening sys- At least six different types of reform could strengthen the tem and a job holder database. These employer sanctions system: reforms could reduce the burden on • Improvements to document security, employers and the likelihood of dis- • Document consolidation, crimination against eligible employees • Mandatory use of employment databases, by “front loading” verification at the • Increased enforcement staffing, point of document issuance, and could • A revised penalty structure, and simplify eligibility verification and • Better worksite access for investigators. streamline enforcement. Such reforms, and their trade-offs, are essential con- Creating an effective employer sanctions regime would likely siderations for improving the integrity require some change within all of these areas, and bills under of the US immigration system. consideration by the 109th Congress encompass all but the last of them. Yet within each of these areas, (IRCA) has been the I-9 form. The form enu- the potential benefits of more effective merates eight documents establishing both enforcement are partially offset by economic identity and work eligibility, twelve documents and other costs of reform. Moreover, existing only establishing identity, and seven docu- congressional proposals may be overly opti- ments only establishing eligibility (current mistic about technological fixes to the prob- instructions on the USCIS website narrow the lems of document and identity fraud and list to twenty-five documents.) To demonstrate about the potential to implement a universal their legal status, employees are required version of the Basic Pilot employer verifica- either to produce one of the dual-purpose doc- tion program. uments (e.g., a US passport or Green Card) or one document from each of the other two lists Thus, in addition to reviewing the costs and (e.g., a state-issued driver’s license along with benefits of these incremental reform strategies, a Social Security card). IRCA requires this brief also argues for consideration of two employers to confirm—to the best of their additional kinds of changes to the existing ability—that new employees can satisfy this employer sanctions regime. First, rather than requirement, and employers document com- requiring employers to query an eligibility data- pliance by maintaining completed I-9 forms base at the point of hire, a centralized screen- on file for every employee. ing system should be established in which the verification process occurs at the point of docu- The optional Basic Pilot employment verifi- ment issuance. Second, employers’ primary cation program, established in 1996, com- responsibility would then be to submit employ- plements the I-9 process by allowing ees’ identification information to a job holder employers to compare a job applicant’s database. This database would become a pri- identification information to the Social mary tool of worksite enforcement, and would Security Administration’s (SSA) database also enhance the integrity of the United States’ and the Department of Homeland Security’s overall system of migration control. (DHS) immigrant database. Where neither II. Background:The Existing automatic nor manual searches of these Employer Sanctions Regime databases are able to confirm a worker’s eli- gibility, the Basic Pilot issues a final non- Any system of employer sanctions must begin confirmation of eligibility and employment with procedures to confirm the eligibility of must be terminated. prospective employees, a process that includes two distinct but related tasks: Following this verification process, sanctions enforcement consists of three tasks: • matching an individual with his or her name and relevant personal information • Targeting employers for investigation. (identification), and Most sanctions investigations have • confirming that the individual is authorized focused on individual businesses on the to work in the United States (verification). basis of leads provided by private citi- zens, the Department of Labor, and In the United States, the primary tool for iden- other local, state, and federal law tification and verification since passage of the enforcement agencies. A secondary 1986 Immigration Reform and Control Act strategy has been to target firms on the 2 Policy Brief basis of their industrial and regional rized immigrants also borrow or steal legitimate characteristics. Some firms were ran- documents and obtain work under someone domly selected for inspection during the else’s name. These two problems—document late 1980s and the 90s, but random tar- fraud and identity fraud—are exponentially geting was discontinued in 1998 for lack more difficult to prevent as a result of I-9 com- of results. plexity: with at least twenty-five different docu- ments in the system, it is simply not possible • Investigating and prosecuting for employers who lack employers. Once a firm is targeted, inves- specialized training to With at least twenty-five tigations have primarily relied on audits of reliably screen job different documents in the I-9 forms and other records. Audits may be applicants. IRCA’s followed by worksite inspections to confirm system, it is simply not pos- well-intentioned anti- the correspondence between these records sible for employers who lack discrimination meas- and actual personnel. specialized training to reli- ures also undercut • Penalizing non-compliant employers. effective enforcement ably screen job applicants. Where investigators find evidence of by preventing careful non-compliance (historically slightly scrutiny of documents which appear to be gen- less than half the time), penalties may uine. Indeed, roughly half of all unauthorized range from a formal warning to a workers are hired by employers who fully com- “paperwork” fine (for unintentional non- ply with I-9 requirements. compliance), to a “substantive” fine (for intentional non-compliance), to the ini- The Basic Pilot program has not fixed these tiation of criminal charges (for engaging in problems. Most importantly, because the pro- a repeated pattern or practice of violations). gram is voluntary, it fails to detect the vast majority of ineligible applicants, including, in III. Flaws in the Existing System particular, those hired by intentionally non- compliant employers. The program is also Deportable aliens apprehended by the INS unable to detect the fraudulent use of bor- dropped by half in the three years following rowed or stolen documents, making it easily IRCA’s passage, and there is considerable evi- evaded by unauthorized migrants. dence that this reduction was partly a result of employer sanctions serving as a deterrent. Yet In addition, flaws in SSA and DHS databases by the early 1990s, employers and unautho- (along with employer errors) ensure that the rized immigrants learned to exploit IRCA’s Pilot produces a high level of false negatives, design flaws, especially with respect to eligi- or cases in which genuinely work-eligible indi- bility verification. IRCA enforcement has been viduals are not confirmed. These false nega- further undermined by statutes and regulations tives are particularly likely to affect recent that protect non-compliant employers. immigrants and other legal non-citizens. And with employers prioritizing rapid resolution The existing verification system rests on the over fairness, false negatives often lead to lost ability of employers to correctly screen employment opportunities. prospective workers for eligibility, but the widespread availability of counterfeit docu- Beyond the verification process, sanctions ments makes doing so difficult. Many unautho- enforcement is fundamentally undermined 3 by the fact that no agency, office, or division short-term disruptions in the availability of has made a priority of worksite enforce- immigrant labor, but failed to build employer ment. The Immigration and Naturalization support for sanctions or to achieve a lasting Service (INS) consistently