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Bush Administration Pushes Enforcement of Immigration Workplace Laws

August 10, 2007 at 6:20 PM EST
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MICHAEL CHERTOFF, Homeland Security Secretary: Time has run out, so now we’re going to go back to the old tools, and we’re going to sharpen them up as best we can.

RAY SUAREZ: Homeland Security Secretary Michael Chertoff said today Congress’s failure to enact comprehensive immigration reform this year had forced the Bush administration to act on its own. Joined by Commerce Secretary Carlos Gutierrez, Chertoff announced new workplace verification laws. He said employers who ignore them could face criminal charges and thousands of dollars in fines.

MICHAEL CHERTOFF, Homeland Security Secretary: People who willfully and consciously hire illegals, knowing that they’re doing it, and knowing that they’re committing crimes in order to do it, including identity theft, those are the people we’re going to be targeting for criminal sanctions.

RAY SUAREZ: Currently, employers must check workers’ Social Security numbers against a federal government database. Employers are notified when the numbers don’t match up. Under the new rule, employers notified of a no-match will have 90 days to confirm an employee’s work eligibility or fire them. Failure to comply could lead to fines of up to $12,500 per violation and felony prosecution.

Chertoff says the government has made nearly 750 such arrests already this year. Immigration agents launched the first in a series of high-profile workplace raids last December, sweeping through several Swift Company meatpacking plants.

In the first five months of this year, they detained and deported over 3,200 undocumented workers. But Commerce Secretary Gutierrez argued the government was not trying to put the squeeze on employers.

CARLOS GUTIERREZ, U.S. Commerce Secretary: We’ve heard from employers consistently that they did not believe they had the tools and that they didn’t have the law to be able to enforce what we’re asking them to enforce. What we’re going to do with our executive branch authority, the president’s authority, is to give employers tools to the extent that we can.

RAY SUAREZ: The two cabinet secretaries also announced plans to deny entry into the U.S. for increased numbers of immigrants associated with international gangs, install an exit system to monitor the departure of foreigners from airports and seaports, while reducing processing times for immigrant background checks.

We get two views now of the impact these new rules will have on the business community. Mark Krikorian is executive director of the Center for Immigration Studies, a Washington, D.C., think-tank devoted to the research and analysis of immigration. And Craig Silvertooth is director of federal affairs for the National Roofing Contractors Association.

Mark Krikorian, is this really a change in anything or just an announcement by the federal government to enforce existing law?

Changes in enforcement

MARK KRIKORIAN, Center for Immigration Studies: Some parts of it were just warming over things that the government was already required to do or was underway, but there are some real changes here. Probably the biggest one is this issue of no-match letters that employers get. That is to say, the Social Security Administration sends letters to employers who have submitted information on employees where the name and the number doesn't match, the Social Security Administration records.

Up to now, those letters could have been ignored. The employers just threw them away and that was the end of it. This new rule will set out steps that employers have to take to check, was there just a mistake, which there sometimes is, or is this person really an illegal immigrant? And if they don't go through those steps, they're then liable.

So this really puts some teeth in the ban that was passed 20 years ago on employing illegal immigrants but which has never been really enforced.

RAY SUAREZ: Well, that no-match letter starts a 90-day clock running. And, Craig Silvertooth, what does it change for your members who are in the construction industry?

CRAIG SILVERTOOTH, National Roofing Contractors Association: Well, speaking of putting teeth in, it takes a bite out of the construction industry. And at the macroeconomic level, it's going to take a bit out of our GDP.

What it changes for an individual employer is this: They're now going to have to go out and hire human resources help. They might have to hire attorneys to help them understand and deal with the legal issues that would be associated with it.

And we're talking about an industry, in the construction industry at least, where our average firm is a small business. Frequently, the accountant, the bookkeeper, the human resources person is the owner, and frequently their home office is the kitchen.

So we're faced with a situation where small employers will be disadvantaged because they're going to be facing a cash flow crunch potentially. Larger employers probably have some of the apparatus -- not all of them do -- and they'll certainly be absorbing significant costs in this process. But larger employers will have a competitive advantage as a result of this.

RAY SUAREZ: What significant costs are any different from any of the other employees that you might have on a site? Explain to me just what's going to be more costly about making sure your employees are supposed to be here.

CRAIG SILVERTOOTH: OK, well, Mark did a pretty good job, I think, of describing the status quo in terms of what an employer is obliged to do if they receive a Social Security no-match letter. Typically what you do is you go to the employee. You say, "I've received this letter. I've checked my records." If they found that it wasn't the result of a clerical error on their own fault, on their own part, the employer goes to the employee, and says, "Does this match up? Is this proper? Did I do this correctly?"

If the employee says, "No, actually you transposed my name. I'm Salinas Hernandez, not Hernandez Salinas," then you can easily correct it and you notify the Social Security Administration of the change. If the employee doesn't have an answer, then the employer is required to tell the employee, "Well, you need to go to the Social Security Administration and take care of this. I'm going to make a notation. And you put it in your personnel file."

It's a very different system now. You've essentially put a gun to the employers' head and put them in a situation where they either terminate the worker at the end of this period, maybe they're a little more concerned and they panic and they terminate the worker earlier on, or they endure the possibility of a legal action against them by DHS down the road.

So in order to avoid that, they're going to go out and hire help. They're going to have to, because not every employer has the sophistication to deal with these types of problems.

A range of effects for employers

RAY SUAREZ: Mark Krikorian, it sounds like a burden for his members.

MARK KRIKORIAN: Well, there are a couple of issues. First of all, the smallest employers are exempt. The Social Security Administration has certain thresholds. You have to have at least 10 of these no-matches in your workforce. It has to account for a certain percentage of your workforce. So somebody who has three employees isn't even going to be on the radar of this, although frankly they should, because they would have been submitting incorrect information to Social Security. So the point is the smallest firms are out.

Secondly, the government has a verification program, an online system. My own think tank participates in it. It's voluntary, but that's something that employers more and more employers need to sign up for so that, at the front end, they can do a better job of making sure they don't end up employing people who are illegal immigrants, because let's get down -- what we're talking about here is people who lied, used fake or stolen Social Security numbers in order to get jobs.

RAY SUAREZ: Today Secretary Chertoff said people who are trying to follow the law have nothing to fear. But for those people who haven't been trying or trying that hard, won't this provide an incentive to just go one step further underground, simply hire more employees who are off all books instead of even trying to submit a Social Security number?

MARK KRIKORIAN: That's entirely possible. When you enforce the law, people who are determined to break it will find other ways of breaking the law. But the fact is that 55 percent to 60 percent of illegal immigrants who have jobs are employed on the books; in other words, this applies to the majority of illegal immigrants. Less than half work for cash hanging out in front of the 7-Eleven, something like that.

So this, in fact, deals with the biggest part of the problem. And also, by making it as hard as possible for illegal immigrants to have regular on-the-books jobs, it makes it harder for them to put down roots, embed themselves in our society, and it makes enforcement easier.


Shifting the burden?

RAY SUAREZ: Craig Silvertooth, isn't that really what the secretaries today said was the intention, to make it harder for people who are...

CRAIG SILVERTOOTH: Absolutely. They are interested in spreading pain. They think that's the answer to solving our undocumented immigrant problem.

But I do have to take issue. Small employers are not off the books. If you have three employees, maybe you don't have a problem. But just to give you an example of construction. Drywallers and roofers, according to the Bureau of Labor Statistics, 30 percent of our workforce is undocumented. Insulation, 36 percent. So if you have 30 employees, you would lose one-third of your workforce.

There's no way that you as a contractor can absorb a loss like that. What you're going to run into -- and, incidentally, the construction environment is unique in that we have performance requirements. You have to adhere to timetables. If all of a sudden in the middle of a job you can't perform any longer, you're on the hook financially. And they're still going to replace you midstream through that, so you're going to be out all of that money.

Look at agriculture: 70 percent to 90 percent of the workers are undocumented, depending on what part of the country you're in and what type of crop. So for a farmer, you know, if they have 100 employees, 100 people out in the field, they're still technically a small business, and they lose 70 overnight?

RAY SUAREZ: Does this shift the enforcement burden to employers, in effect, making them the enforcers of the law, because the federal government hasn't been able to keep illegal immigrants out of the country?

MARK KRIKORIAN: Well, enforcing immigration laws requires both better enforcement at the border, in other words, keeping people physically from getting in, to the extent that's possible, but also requires making it hard for illegal immigrants to live normal lives and turning the magnet off that attracts them. You have to have interior enforcement and border enforcement.

And this doesn't really make employers Border Patrol agents or what have you. This simply requires that they submit correct information to the Social Security Administration and that, if it's incorrect, they need to follow up on it. If you or I submit incorrect information to the IRS or anyone else, we have to, you know, make that right. We have to fix our mistakes, assuming they were honest. All this is, is requiring employers to do the same thing.

RAY SUAREZ: Well, I guess the bottom line is, can your members put roofs on houses and comply with the law?

CRAIG SILVERTOOTH: We will put fewer roofs on houses. We'll put fewer roofs on commercial buildings. And you're going to see the prices skyrocket. There's absolutely no way that we can deal with this type of regulation and continue to provide the services that the country demands.

RAY SUAREZ: Gentlemen, I have to stop it there, but thank you both.

CRAIG SILVERTOOTH: Thank you.