With the clock ticking on the legislative session, President Obama held a Roosevelt Room meeting on immigration reform, even as House Speaker John Boehner dismissed the idea, at least for this year. At issue is the Senate's "Gang of Eight" bill. It offers many of America's 11 million undocumented immigrants a path to citizenship while still requiring them to pay back taxes. It’s also designed to make legal immigration easier and illegal immigration more difficult. Lastly, it mandates the use of the federal government's intrusive and unreliable E-Verify system, aimed at cracking down on employers who hire unauthorized workers.
Opinions are mixed on the bill as a whole. Republicans claim the bill will increase budget deficits and unemployment, while decreasing native-born workers’ wages. Democrats claim that immigration reform will reduce the federal deficit.
One thing that isn’t up for debate are the significant drawbacks to mandating use of E-Verify for all US employers. Forcing United States businesses to use the system will encourage employers to discriminate against potential hires on the basis of nationality. Technical glitches will keep legal employees out of jobs. And creating one more national database for federal agencies to mine will pose a significant Fourth Amendment threat.
But the ACLU pointed out perhaps the biggest problem with a program like E-Verify. In attempting to solve a problem involving just a tiny fraction of workers, it brings the United States much closer to a "permission society," where the government grants or revokes the privilege to feed and clothe your family.
E-Verify is a system operated by the U.S. Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA). It’s used to verify an employee’s eligibility to legally work in the United States. Currently, less than one percent of employers use it. The Gang of Eight bill makes using this system mandatory for every United States employer. And it must be used within three days of hiring. Beyond that, it mandates the use of tamper- and identity-theft resistant Social Security cards. Infractions can result in fines of up to $25,000 per violation or two years in prison.
A mandate with lots of mandates
The first problem with mandating E-Verify use is how much work it’s going to create for employers. According to the E-Verify user manual, a freelancer who wants to contract out work will need to become a program administrator, tasked with chores like registering new users, opening and closing accounts and adding other program administrators and users.
In addition, the manual states that “Employers participating in E-Verify MUST:”
- Follow E-Verify procedures for each newly hired employee while enrolled/participating in E-Verify.
- Notify each job applicant of E-Verify participation.
- Clearly display both the English and Spanish ‘Notice of E-Verify Participation’ and the ‘Right to Work’ posters.
- Complete Form I-9 for each newly hired employee before creating a case in E-Verify.
- Ensure that Form I-9 ‘List B’ identity documents have a photo.
- Create a case for each newly hired employee no later than the third business day after he or she starts work for pay.
- Obtain a Social Security number (SSN) from each newly hired employee on Form I-9.
- Provide each employee the opportunity to contest a tentative nonconfirmation (TNC).
- Allow each newly hired employee to start and continue working during the E-Verify verification process, even if he or she receives a TNC.
- Ensure that all personally identifiable information is safeguarded.
But, "Employers participating in E-Verify MUST NOT:”
- Use E-Verify to prescreen an applicant for employment.
- Check the employment eligibility for an employee hired before their company signed the E-Verify MOU.
- Take any adverse action against an employee based upon a case result unless E-Verify issues a final nonconfirmation.
- Specify or request which Form I-9 documentation a newly hired employee must use.
- Use E-Verify to discriminate against ANY job applicant or new hire on the basis of his or her national origin, citizenship or immigration status.
- Selectively verify the employment eligibility for a newly hired employee.
- Share any user ID and/or password.
Every United States employer must do all of this and, you know, run the business.
If you like your racism, you can keep it
The E-Verify system requires all employers to go through the entire interview, offer, negotiation and acceptance process before they are allowed to check whether any applicant is eligible to work. Of course E-Verify’s propensity to put the kibosh on the hire at the end of the process will lead employers to discriminate against non-native born workers to save themselves the expense. Any expectation otherwise stretches credulity.
From the people who brought you Healthcare.gov!