Immigration Reforms Could Change Hiring Practices

JEFFREY BROWN: Continuing his push for a comprehensive immigration reform bill, President Bush went to the U.S. Chamber of Commerce today and touted a new system that would enable employers to determine the legality of those they were hiring.

GEORGE W. BUSH, President of the United States: I think this is sensible. I think, if we want to enforce our laws, people ought to be required to check to see whether or not names and numbers match.

JEFFREY BROWN: The provision, included in both the Senate and House bills, is called the Employment Verification System.

The nation's 6.5 million employers would be required to check an electronic database to determine if future workers are here legally and entitled to work. Those who knowingly employ illegal immigrants could face fines as high as $20,000 per worker and jail time for repeat offenses.

During Senate debate on the plan, both sides of the aisle stressed its significance.

SEN. BARACK OBAMA (D), Illinois: This is probably the single most important thing that we can do, in terms of reducing the inflow of undocumented workers: making sure that we can actually enforce, in a systematic way, rules governing who gets hired.

SEN. CHARLES GRASSLEY (R), Iowa: What we are trying to do is balance the needs of workers and employers and the immigration enforcement.

JEFFREY BROWN: It's been a crime to employ illegal workers since the passage of the 1986 immigration law, but studies have shown that penalties have not been widely enforced.

The new program is intended to replace one known as Basic Pilot, an optional verification system in place since 1997. To date, only a small fraction of the nation's employers have participated.

JEFFREY BROWN: And we look at some of these issues now with: Laura Reiff, chair of the Essential Worker Immigration Coalition, which represents business interests in the debate over immigration reform; and Kevin Jernegan, a professor at George Washington University, who specializes in labor and immigration.

And welcome to both of you.

LAURA REIFF, Essential Worker Immigration Coalition: Thank you.

KEVIN JERNEGAN, Professor, George Washington University: Thank you very much, Jeff.

JEFFREY BROWN: Mr. Jernegan, starting with you, we hear both sides saying that this is something of a linchpin in whatever happens. Why? Why is it so important?

KEVIN JERNEGAN: Well, it's very difficult to enforce any sort of sanctions against employers unless you can establish that they knowingly hired undocumented labor.

Going back to 1986 with the Immigration Reform and Control Act, we'd identified that one of the major draws for undocumented immigrants was, in fact, these abundant job offers that they had here that paid substantially better than they could make on the other side of the border.

So we wanted to go after these -- we reduced the number of jobs that were available to them and hopefully stemmed the tide of illegal immigration. And it seemed to have worked temporarily, in that, after 1986, we saw that the apprehension of deportable aliens dropped by 50 percent during the first three years after that.

So there's strong evidence to suggest that the employer sanctions against employers, in fact, helped. But pretty soon people figured out that there were ways around the system and that you could introduce fraudulent documents, for instance.

There was very little enforcement. The number of actual investigations of employers and penalties assessed against them was very minimal. And so, pretty soon, you found that the number of undocumented started to go up again.

But, basically, in order for any of the employer sanctions to be effective, you have to have a reliable way of knowing who is and who is not lawfully present. And, right now, if you look at someone who's got a bogus identity card, a stolen identity, how can you really establish that that employer really knowingly hired someone who was lawfully present?

JEFFREY BROWN: What is your sense of why things have not worked? We've said now several times the law is that you cannot hire illegal workers. Why hasn't it worked?

LAURA REIFF: Well, in 1986 -- the true reason why it hasn't worked is, in 1986, we only fixed half of the problem. We had undocumented workers here who needed to have some kind of stability in their life, and we have the act that changed their status to permanent residents.

What we didn't do was provide a mechanism for allowing workers to come into this country when we couldn't find U.S. workers, and that's what you hear the president saying now, willing workers for willing employers.

We didn't have a spigot, a valve to have those workers come into this country. So what happened was we had an economic boom here and employers had job openings, couldn't find U.S. workers, and we've got 500,000 undocumented workers coming into this country now illegally.

So we had a problem with that system. And when those workers come into the country, they have the fraudulent documents, like Kevin said. And so employers, when they're looking at the documents, which we're required to do under the Employment Eligibility Verification System, can't look beyond those documents.

If they look like on their face they're valid documents, we have to accept them. We do accept them; we do our compliance, and they're here. They're working. So we have a severely broken system which started in 1986.

JEFFREY BROWN: So is it fair to say now that there is a consensus on having some kind of verification program, but there is problems with the details?

KEVIN JERNEGAN: Yes, I think that's a safe assessment. There certainly is a broad consensus that this has to happen.

If we're going to have any sort of enforcement, we need to be able to identify which employers are making good-faith efforts to comply with the law and which ones are, in fact, willfully non-complying.

And so you get down to the fine points of, you know, how can you make this happen? And the existing Basic Pilot system that's been tried over the last 10 years here seems to work fairly effectively, by providing a database that allows for external verification of a person's work authorization and eligibility used in primarily the Social Security number, but also using IRS records and Department of Homeland Security records.

You know, there's still some bugs in the system. The system works very, very well for U.S. citizens who have been in the system since childhood. We've all had Social Security numbers, and so we get very high rates of approval for U.S. citizens.

The problem tends to come up more with people who are newly arrived but quite probably or possibly legally, you know, present immigrants and who have not been in the system very long.

They may have some discrepancies in their records related to different spellings of names, you know, juxtaposed dates of birth. Maybe they use a day-month format for birth instead of a month-day format. These sorts of little things can throw off the computer verification of that, resulting in delays.

What happens when an employer gets what's called a tentative non-confirmation from the system, do they, in fact, know to wait and actually give the person advice on how to appeal that, or provide additional information, or wait for a final confirmation, you know, or do they simply pass that person over and move onto the next person whose employment eligibility is more readily verifiable?

JEFFREY BROWN: And from the business side, what are the concerns? There are concerns that have been raised with this new potential provision.

LAURA REIFF: Yes. Actually, the business community would prefer not to be the document police. We believe it's within the purview of the government to have to check employment eligibility and make sure that workers that come into this country actually have the documents and the proper work authorization. Employers shouldn't have to bear that burden.

JEFFREY BROWN: Why not?

LAURA REIFF: Because it's the government's job to make sure that our borders are secure and that, when employees or when workers come across the border, they have the proper documentation.

However, we understand post-9/11 that, you know, we're willing to chip if and do our part, but we need a system. I guess what I'm saying is we've accepted the fact that we need to have an employment eligibility and verification system.

JEFFREY BROWN: Something's going to happen?

LAURA REIFF: It's going to happen; it's already happening. But we need a system that is foolproof, it's fail-safe, that it is reliable and it provides blanket protection from liability for employers when we do what we're asked to do.

We need something that's fast, that's efficient. And what Kevin has just described here is a system right now that can take -- you know, it can take up to two months to get a Social Security number for somebody.

And if you're relying on the current Basic Pilot program, you're not going to be able to put somebody on the payroll for two months, because they don't have a Social Security number, so there are a lot of things that need to be worked out in order to make this system really smooth-sailing for employers.

We're worried that we're going to -- if we have one of the systems that's actually been proposed, that we're going to end up turning down U.S. workers, which nobody wants.

JEFFREY BROWN: Now, you raised some of the civil libertarian concerns over this, about privacy, about potential discrimination. Are there protections being debated now or built into the bills?

KEVIN JERNEGAN: There are. It's a tricky situation. You have to find a balance, and that one of the great problems from a point of view of enforcement is right now, with the existing I-9 process, there are a wide variety of documents that a person can submit in order to establish their identity and employment eligibility.

That means that a prospective employer has to be able to identify all of these documents and know which ones are real and which ones aren't. That's kind of a heavy burden to put on an employer.

So there's a strong desire to try and consolidate, you know, the list of documents down to one standard I.D. that, you know, everyone can recognize, but then you get into issues like, you know, a national I.D. card. And, you know, is that going to come with privacy issues that we should be concerned about?

You know, oftentimes, people who are, in fact, lawfully present may not have those kinds of documents. For instance, where you talk about -- some of the compromises that were discussed were requiring a Real I.D. Act-compliant identity documents. These identity documents are not yet available, will not be for quite some time.

JEFFREY BROWN: You're both raising technical issues, and I guess there must be a cost issue, as well. What is at stake here? What are the costs, and is there any evidence that people are ready to bear it?

LAURA REIFF: Well, you know, one of the proposals was to actually have employers bear the burden of verifying the employment eligibility of these workers, and that's a, you know, straight-out hard cost to employers.

But there's also a cost of having to implement a new system, obtain equipment. A lot of our employers are small businesses. I'm an employer. I employ people to work in my home.

What am I going to have to do to comply with this? What are small businesses going to have to do? So there are those kinds of costs.

And then, with some of the proposals that have required re-verification of the entire workforce, think about the administrative and the human resource costs of going back, and getting these folks in, and then the logistics of just dealing with re-verification.

So there are all kinds of costs that are incurred in dealing with this system and, frankly, employers don't want to have to bear the brunt of that.

JEFFREY BROWN: We just have a few seconds left. What are the prospects here? We've said everybody wants it, but there's all kinds of issues you've just brought out. What are the prospects?

KEVIN JERNEGAN: Well, that's the $50,000 question, isn't it? I think that -- I mean, realistically everyone agrees that this is sort of a necessary thing that has to happen, given the current, you know, time frame, given the current zeitgeist.

You know, people are concerned about illegal immigration. We need do something about it, so this is probably going to happen. The points that are left are relatively minor ones.

JEFFREY BROWN: OK, Kevin Jernegan, Laura Reiff, thank you both very much.

KEVIN JERNEGAN: Thank you, Jeff.

LAURA REIFF: Thanks, Jeff.