Mostly overlooked in the controversy over the Senate's
immigration legislation is the massive expansion in the reach of
the federal government's power over labor markets that is embedded
in its worksite enforcement provisions. The legislation's third
title calls for unleashing the IRS and immigration police on
businesses and workers. These provisions would insert the federal
government into the workplace in ways that would touch each and
every U.S. worker. Rather than place great and unnecessary burdens
on all workers and employers, Congress should focus workplace
enforcement efforts where they are likely to do the most good.
New Government Powers
Among other expansions of regulatory control, Title III of S.
- Makes employers liable for the illegal workers that their
contractors or subcontractors might have on their payrolls (Sec.
- Saddles employers with vastly increased record-keeping
requirements (Sec. 302(c));
- Expands the pilot Employment Eligibility Verification System to
nearly all businesses, large and small, even though the likely
expense of implementing the system would be beyond the financial
means of many businesses (Sec. 302(d));
- Permits the IRS to share detailed taxpayer data with
non-governmental contractors of the Department of Homeland
Security, thus breeching a long-standing barrier against such data
sharing (Sec. 304(a)(1)(A));
- Permits the Department of Homeland Security to institute a
fingerprinting program in private businesses in order to prevent
the employment of undocumented workers; and
- Creates a new unit within the Criminal Investigation office of
the IRS to investigate violations of federal tax laws by employers
who hire undocumented workers.
All Workers Burdened
These provisions would force a bureaucratic nightmare upon every
American worker and their employers. The bill provides amnesty to
12 million individuals who have broken the law while at the same
time requiring all law-abiding U.S.-born workers, permanent
residents, and non-immigrant workers to prove again that they are
eligible for employment.
Under the proposal, each worker would be required to prove work
authorization even if he or she has already done so under current
law. A passport or birth certificate would not be sufficient; a new
"confirmation" from DHS is required. American workers would
actually need approval from DHS to continue working in their
In addition, before contracting with other businesses, such as
cleaning and construction companies, employers may be required to
check with 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)).
The pilot EEVS is used voluntarily by more than 10,000
employers, according to DHS, to verify employment eligibility for
about one million new hires per year. The Congressional Budget
Office has estimated that the proposal would require expanding this
to more than 6 million employers conducting 65 million
verifications each year and checking the records of 130 million
existing employees. The pilot EEVS
returns automatic "confirmations" in only 85 percent of cases. The
remaining 15 percent require a secondary verification conducted by
DHS staff members, which can take up to two weeks. In 2004, when
about 2,300 employers used the system, 38 staff were assigned to
this responsibility. Mandating this program for all employers could
put 15 percent of the workforce in limbo--neither authorized nor
unauthorized, but "non-confirmed." Few of these workers are
actually illegal, but if the government bureaucracy cannot confirm
their legal status, companies would be forced to fire workers who
fail EEVS verification. This would put
millions of U.S. citizens and legal immigrants out of work because
of bureaucratic mistakes.
A worker whose records at DHS are not in order may be required
to "appear in person at the appropriate...agency for purposes of
verifying the individual's identity and employment authorization"
within 10 business days (Sec. 302(d)(5)(C) (iii)(II)). If the
worker fails "to take the steps required by the Secretary...a final
nonconfirmation may be issued" and "the employer shall terminate
employment of the individual" (Sec. 302(d)(5)(C) (iii)(III) and
Sec. 302(d)(5)(D) (i)). In other words, the worker would lose his
or her livelihood.
Bureaucratic Delays Unavoidable
This proposal would likely be impossible to implement in the
real world. To meet the law's 18-month deadline, DHS would have to
enroll 20,000 to 40,000 new employers a day in the EEVS system. Within
another 18 months, the government would have to verify the legal
status of every employee at each of those firms. This is a massive
new responsibility for an already overloaded bureaucracy that would
also soon be swamped by 12 million new "Z" visa applications. It
would also be an enormous, unproductive, and unnecessary burden on
employers. In addition, it would shift DHS resources from tracking
down illegal immigrants to processing the employment requests of
tens of millions of U.S. citizens trying to switch jobs.
At first glance, the requirement to verify all current workers,
not just new hires, seems so unworkable that it appears designed
only to placate advocates of tighter enforcement of the laws. In
practice, it would surely fail and ultimately be cancelled. That
would be the good news. The real danger is that these provisions
might actually be enforced.
It makes no sense to require every American to verify his or her
employment eligibility when most illegal immigrants work in a
handful of sectors of the economy, such as agriculture and
construction. Very few software engineers work in America
illegally. It makes far more sense to focus enforcement measures on
employers likely to hire illegal immigrants. Requiring businesses
to post surety bonds stating they are not hiring illegal immigrants
would prove a far more effective and efficient workforce
verification measure than giving the federal bureaucracy control
over every American worker's employment.
This legislation turns common sense on its head by giving
immediate legal status to illegal aliens while putting in jeopardy
the jobs of citizens. It would violate the privacy of millions of
taxpayers while redirecting DHS resources away from dealing with
the problems of illegal immigration to a massive new effort of
re-verifying the legal status of citizens and permanent residents.
Congress should reject this irreparably flawed approach to
Wes Dyck is Director of
Personnel at The Heritage Foundation. William W. Beach is
Director of, and James
Sherk is Bradley Fellow in Labor Policy in, the Center for Data
Analysis at The Heritage Foundation.
U.S. Citizenship and Immigration Services, Proven Employment
Verification Tool Attracts 10,000 Employers, News Release, July 24,
Congressional Budget Office, Cost Estimate: Senate Amendment 1150
to S. 1348, June 4, 2007.