I-9 Employer Compliance
I-9 It is common knowledge in immigration circles and beyond that for many years workplace enforcement has been one of the laughable spots of U.S. immigration policy. The old rules worked more or less than this: Since an employer cannot be deemed an expert on counterfeit documents, and since employees are required to show evidence of work authorization, it was sufficient for the worker to present a fake I.D. (readily available on the black market for about $30) and make up a Social Security Number for the employer to wash its hands of the matter and claim he had done everything that was required.
This obviously was and still is an outrageous lie, one perpetrated at every level of both the private and the public sectors: on one hand, the employer could claim that it had done everything he could to ascertain the legal status of the worker while consciously avoiding the issue of the true immigration status of the worker; on the other hand, the government could stick its head in the sand and claim that I-9 compliance prevents unauthorized employment.
This somewhat cozy arrangement was indeed necessitated by the lack of a comprehensive immigration system of laws and made up for:
- The lack of an efficient and legal system to bring low-skilled or temporary labor to this country;
- The perennial need of some sectors, especially the agricultural, construction, manufacturing, and tourism industries, for workers willing and able to work and tasks typically scorned by the U.S. population and way beyond what is currently offered by the U.S. labor pool;
- The presence of millions of undocumented workers eager for work and looking to earn a living.
OF COURSE, THE SAND CASTLE BUILT SO FAR IS THREATENED by the very existence of the so-called “social security no-match letters”: upon receiving payroll withholdings not matching its records, the Social Security Administration can easily verify that the social security numbers provided to the employer are either fake or do not match the taxpayer’s name and other vital records. This poses an immediate dilemma: since the Social Security Trust Account is in perennial deficit and projected to go bankrupt in the near future, do we really want to stop the flow of funds to the tune of several billions dollars a year? For this reason alone, if anything else, the SSA has traditionally been reluctant to share information with the now defunct Immigration and Naturalization Service (INS) and now with Immigration and Customs Enforcement (ICE).
However, the SSA has for quite some time had a policy to notify some of the larger employees of the problem with the so-called no-match with a letter. Receipt of the Social Security letter in turn raised an obvious question: what does an employer faced with a no-match letter have to do to be able to keep denying knowledge of undocumented status of the worker and keep its business alive? Surprisingly enough, the answer for many years has been “nothing”. Legacy INS memoranda made abundantly clear that the receipt of a no-match letter alone was not ground for inferring the unauthorized status of the employee, and could not by itself be ground for dismissal.
This was of course another fanciful way to save face while denying the obvious: there are millions of undocumented individuals in the United States, businesses throughout the country depend on them, the moribund Social Security Trust Fund has been surviving in part because of them, and, enforcing a dysfunctional set of immigration laws that do not provide an efficient way to legally bring here these same workers could wreak serious havoc on the U.S. economy, not to mention strain precious enforcement resources that some argue should be deployed to keep terrorists and other security risks outside of the United States. Now this delicate system of lies is coming to a halt.
ICEHAS ANNOUNCED A NEW SET OF RULES that will not provide such a simple way out to employers, and at the same time raises the specter of more employer sanctions upon future enforcement actions. The concept of “constructive knowledge” i.e. knowledge imputed to the employer who knew or should have reasonably known that the worker is not authorized to work, has found its way into ICE policy. This readily applies to the employer who receives a no-match letter. No longer the employer will be able to simply disregard the SSA. Inaction after receipt of a no-match letter can be considered constructive knowledge and burst the bubble of willful avoidance that has so far protected businesses of all kind. It is very conceivable that in the future employers and not only the workers will suffer the consequences of raids and other enforcement actions in the workplace. It will be easier in the future for the government to build cases against employers who willfully disregarded the questionable nature of the employees work authorization documents.
While this in itself is somewhat laudable (while should the undocumented workers who will be deported the only ones to suffer consequences), the issue remains of what policy do we want to achieve and how is business going to cope with a stepped-up enforcement environment. One is left to wonder what this will accomplish, and, what the ultimate costs and benefits will be. Will this another law left on the books and not applied in the real world? Will the government and business find another way not to look at the pink elephant in the room? Or will these rules be carried to their extreme consequences? If they are, it is possible that in the short term we could witness a heightened enforcement climate, factory raids, removal proceedings separating undocumented workers from their US born, US citizen child, and, legal actions against employers. Businesses will have to scramble to revisit their compliance and retention policies to make sure that they are shielded from possible charges, and massively proceed to layoff questionable workers.
Regardless of the outcome, the turmoil should make everyone reflect: is this the society we want for ourselves? Are we not hurting ourselves in the process? Is there a better way to deal with these problems? Should we not try to change the law as it is written? Everyone should look beyond their petty, individual interest and try to see the big picture. Beyond the lobbies, the interest groups, big business, small business, advocacy groups, unions, laid off domestic workers, politicians facing reelection, there lies a collectivity we call a nation, and, somewhere, a superior, common interest. Different minds can differ on what that is, or how we can achieve it, but in order to survive as a nation we will have to find it. Some people seem to think that the solution is to be enforce existing laws as they are written.
I personally disagree, and think that this approach will not only hurt and divide the nation deeply, but will be ultimately impossible to achieve. I have been dealing with US Immigration laws for the better part of twenty years, am an immigrant myself, and have first knowledge of many of the issues presented. I am deeply persuaded that the set of rules in effect now are unbalanced, dysfunctional, and do not provide for a cohesive, effective system to regulate immigration patterns, enforce domestic security, or provide businesses with a flexible and competitive workforce. I believe that, unless something is changed, continuing on this path will further erode U.S. competitiveness and standing in the world.
TIME WILL TELL WHO IS RIGHT.