The amnesty provisions of the Senate immigration-reform bill have torched a firestorm of controversy. Overlooked amid all the sturm und drang is the chilling fact that the proposal's worksite-enforcement provisions would tremendously expand federal intrusion into the labor market.
Title III of the bill would insert the feds into hiring decisions made by every U.S. employer in ways that would touch each and every U.S. worker. And it does so in the most punitive, ham-fisted, bureaucratic ways possible. For example, Title III:
- Requires all employers re-verify all their workers, not just new hires, using the flawed Employment Eligibility Verification System (EEVS) regardless of the system's security and accuracy and regardless of the cost (which is likely to be well beyond the means of many small businesses (Sec. 302(d)(2)(D));
- Makes employers liable if their contractors or subcontractors have illegal workers on their payrolls (Sec. 302(a)(3));
- Saddles employers with vastly increased record-keeping requirements (Sec. 302(c));
- Lets the IRS share detailed taxpayer information with private contractors of the Department of Homeland Security (DHS), breeching a long-standing privacy-protection barrier (Sec. 304(a)(1)(A));
- Allows DHS to require private businesses to fingerprint all job applicants; and
- Creates a new IRS unit to investigate employers suspected of hiring undocumented workers.
Together, these provisions constitute a bureaucratic nightmare for law-abiding Americans. Even as the bill grants amnesty to 12 million illegal immigrants, it requires all legitimate workers - both native born and foreign - to prove that they have a legal right to work.
Proving that you're legit is no "gimme." It's not enough to show your boss your birth certificate or passport. Any proof you offer your boss will have to be "confirmed" by DHS.
And there's no "grandfather clause" in play. If you want to continue working in your current job, you'll need to get the DHS seal of approval, or it's hasta la vista for you.
Employers who want to contract with other businesses such as cleaning, landscaping, or construction companies may also be required to go through DHS to "obtain confirmation from the Secretary that the contractor or subcontractor has registered with the Employment Eligibility Verification System (EEVS) and is utilizing [it] to verify its employees" (Sec. 302(a)(3)(B)).
And just how good is EEVS? A 2002 independent study by the Institute for Survey Research and Westat raises serious concerns about the accuracy of this type of system. The Government Accountability Office (GAO) confirmed these problems in a June 2005 report to Congress. The GAO report added that the system "may not be able to complete timely verifications if the number of employers using the program significantly increased."
In 2004 when only 2,300 employers were enrolled in the system, 15 percent of the applications required secondary verifications - taking up to two weeks - before they could be confirmed as eligible to work. According to the GAO, even a small increase in the number of employers participating would slow the verification process further.
What are the chances that EEVS can be whipped into shape in before the deadlines established by the bill? Slim to none, according to the experts. According to DHS, only about 16,000 employers are currently using the system. This is only a small fraction of the 6 million or more U.S. employers that would need to be enrolled. To be used by all employers, DHS would have to enroll 20,000 or more new employers a day, every day, for 18 months. This is more each month than the total number enrolled in the 10-year history of the program.
Then the feds would have to verify the legal status of every employee at each of those firms within a year and a half - at the very same time they are supposed to be reviewing and running comprehensive background checks on 12 million illegal immigrants seeking the new "Z" work visa.
This bill could put one in eight U.S. workers are in EEVS limbo, being neither authorized nor unauthorized, Few are actually illegal, but since the system can't confirm their legality, companies would have no choice but to let these workers go, forcing millions of citizens and legal immigrants out of work.
The requirement to verify all workers, not just new hires, is patently unworkable, Once it creates sufficient havoc in the workplace, it will be repealed.
If the bill's authors were seriously interested in cracking down on businesses who hire illegal immigrants, it would focus on the relatively few sectors of the economy where this practice is common.
Very few software engineers work in America illegally. Better to concentrate the enforcement effort on sectors such as agriculture and construction where employment of illegals is rampant.
And why not require businesses to post surety bonds stating they are not hiring illegal immigrants? That would prove a far more efficient workforce-verification measure than giving the federal bureaucracy control over every American worker's employment.
As it stands now, the Senate immigration bill turns common sense on its head. It legalizes illegal workers immediately while calling into question all legitimate workers' rights to hold their jobs. If Lewis Carroll's Alice were to search for a Wonderland version of immigration reform, this would be her bill.
Wes Dyck is director of personnel at The Heritage Foundation.
First appeared in the National Review Online