Illegal Alien Workers: Employers Being Protected by Feds
by Jim Kouri, CPP
The opportunity for employment is one of the most important magnets attracting illegal aliens to the United States. The Immigration Reform and Control Act of 1986 established an employment eligibility verification process and a sanctions program for fining employers for noncompliance. But many employers risk exposure knowing penalties are minimal when compared to money saved from paying low wages to illegal workers.
Few modifications have been made to the verification process and sanctions program since 1986, and immigration experts state that a more reliable verification process and a strengthened worksite enforcement capacity are needed to help deter illegal immigration.
The current employment verification (Form I-9) process is based on employers' review of documents presented by new employees to prove their identity and work eligibility. On the Form I-9, employers certify that they have reviewed documents presented by their employees and that the documents appear genuine and relate to the individual presenting the documents.
However, document fraud (use of counterfeit documents) and identity fraud (fraudulent use of valid documents or information belonging to others) have undermined the employment verification process by making it difficult for employers who want to comply with the process to ensure they hire only authorized workers and easier for unscrupulous employers to knowingly hire unauthorized workers.
In addition, the number and variety of documents acceptable for proving work eligibility has hindered employer verifications efforts. In 1998, the former Immigration and Naturalization Service, now part of the Department of Homeland Security, proposed revising the Form I-9 process, particularly to reduce the number of acceptable work eligibility documents, but DHS has not yet finalized the proposal.
The Basic Pilot Program, a voluntary program through which participating employers electronically verify employees' work eligibility, shows promise to enhance the current employment verification process, help reduce document fraud, and assist ICE in better targeting its worksite enforcement efforts. Yet, several current weaknesses in the pilot program's implementation, such as its inability to detect identity fraud and DHS delays in entering data into its databases, could adversely affect increased use of the pilot program, if not addressed.
The worksite enforcement program has been a low priority under both INS and ICE. For example, in fiscal year 1999 INS devoted about 9 percent of its total investigative agents' time to worksite enforcement, while in fiscal year 2003 it allocated about 4 percent. ICE officials claim that the agency has experienced difficulties in proving employer violations and setting and collecting fine amounts that meaningfully deter employers from knowingly hiring unauthorized workers. In addition, INS and then ICE shifted its worksite enforcement focus to critical infrastructure protection after September 11, 2001. DHS also developed new written procedures and acted to ensure that immigration investigators are aware of all individuals with revoked visas who may be in the country.
However, weaknesses remain. For example, State Department and DHS procedures are not fully coordinated and lack performance standards, such as specific time frames, for completing each step of the process. Outstanding legal and policy issues continue to exist regarding the removal of individuals based solely on their visa revocation.
As part of its mission to ensure national security, DHS is charged with enforcing the laws requiring employers to employ only individuals authorized to work in the United States. The Form I-9 requirement stems from Section 274A of the Immigration and Nationality Act and implementing regulations, which require all U.S. employers (including agricultural associations or employers who recruit or refer persons for employment for a fee) to verify on the Form I-9 the identity and employment eligibility of all employees -- including U.S. citizens -- hired to work in the United States after November 6, 1986.
Completed Forms I-9 are not filed with the federal government. Instead, they must be retained by the employer in its own files and made available for inspection by DHS, the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor for three years after the date of hire or one year after the date the employee's employment is terminated, whichever is later. Recruiters or referrers for a fee are required to retain the Form I-9 records for three years after the date of the hire. Failure to properly complete and retain the Form I-9 subjects the employer to civil penalties ranging from $110 to $1,100. Hardly a penalty for companies making millions of dollars in profits due to low wages paid to illegal aliens.
Sources: Department of Homeland Security, General Accountability Office, AmeriCop USA, National Association of Chiefs of Police, US Immigration and Customs Enforcement , National Security Institute
Jim Kouri, CPP is currently fifth vice-president of the National Association of Chiefs of Police. He's former chief at a New York City housing project in Washington Heights nicknamed "Crack City" by reporters covering the drug war in the 1980s. In addition, he served as director of public safety at a New Jersey university and director of security for a number of organizations. He's also served on the National Drug Task Force and trained police and security officers throughout the country. He writes for many police and crime magazines including Chief of Police, Police Times, The Narc Officer, Campus Law Enforcement Journal, and others. He's appeared as on-air commentator for over 100 TV and radio news and talk shows including Oprah, McLaughlin Report, CNN Headline News, MTV, Fox News, etc. His book Assume The Position is available at Amazon.Com, Booksamillion.com, and can be ordered at local bookstores. Kouri holds a bachelor of science in criminal justice and master of arts in public administration and he's a board certified protection professional.