Our Employment Process is Broken
Employers in this country are legally hiring large numbers of people who are not work authorized. How does this happen?
The simple answer is that in order to work, many employees present fraudulent work authorization documents to employers. There are a variety of documents which can be used, and many of these documents are easily forged. At this time, there is no legal, reliable and non-discriminatory process for employers to check the authenticity of documents.
Is there any legal method for employers to verify that their current employees are work authorized?
Employers can only check work authorization for new hires through the “Basic Pilot.” Employers cannot use this program for pre-hiring decisions nor can employers use this program to verify the work authorization of current employees.
What is the “Basic Pilot” contract?
References to employment verification systems are often used incorrectly. At present, the Basic Pilot is the only legal system in this country to determine work authorization status. The Basic Pilot is a written agreement between an employer, the Department of Homeland Security and the Social Security Administration. The federal government cannot mandate its use by anyone. A future Congress is likely to make mandatory some sort of employer verification process, but it may not be the Basic Pilot.
Under the contract, the Basic Pilot must be used for all new hires. If the Basic Pilot does not confirm work authorization of the employee, the employer is required to discharge the employee within a specified time period. As with any contract, certain requirements must be adhered to or the federal government can sever the contract.
As of August 2006, Homeland Security reported 10,000 out of 8.5 million U.S. employers registered under the Basic Pilot. There are more than 120,000 employers in Arizona, which creates an immediate capacity issue.
Additionally the Basic Pilot has no ability to detect fraud, and there are well-documented reliability, accuracy and discriminatory problems. Homeland Security has testified that its accuracy declines when moving from native-born labor pools to the naturalized citizen to those here on immigrant visas.
Homeland Security’s own August 2006 statement, as to the state of the Basic Pilot program: “Although a likely model for a future mandatory national Employment Verification Program, the current Basic Pilot Program was designed as a relatively small scale operation and related proposals currently before Congress are much more than the simple expansion of the Basic Pilot. It will take additional time, considerable funding, a new fee, structure, and significant manpower to design the necessary systems, electronic connections, and inter-agency links required under a comprehensive Employment Verification Program. In addition, concerns over civil liberties and privacy issues hamper proposals to establish a comprehensive employee database that includes biometric information."
Why doesn’t the State of Arizona simply enact fines and criminal penalties against employers who illegally hire workers?
Except for licensing and similar issues, federal law preempts state and local governments and limits what types of sanctions can be leveled against employers.
What does “work authorized” mean?
All native-born and naturalized citizens have a right to work in this country. For all others, the right to legally work in this country depends upon the nature of their visa. For example, a person may be legally visiting this country and not be work authorized. Conversely, there are circumstances where a person is in this country illegally, yet the person may be work authorized.
Should employers decline acceptance of social security number 000-00-0000?
That would be a good idea. There are several thousand instances of employees using this number. It is bogus on the face of it. Nevertheless, employers are not document experts, and they must have precisely the same process and procedure for all applicants. The above represents an extreme. Until the federal government fixes our system of fraudulent documents and a reliable and timely method of verification, absent constructive knowledge that a party is illegal, employers have to err on the side that documentation presented is legal.
We have dozens of visas – why do we need more?
It is not the number of visas – it is their relevancy. We need 500,000 new entrants into the labor pool every year for lower skilled jobs to keep our economy growing, and we only have about 5,000 visas for this category of worker, outside of agriculture.
The only visa for agriculture (H2-A) is specifically designed to recruit citizens and it allows for foreign nationals only as a last resort. It is constructed so that it is very difficult to make the process work and certainly not in a timely fashion. Because of its problems, this visa has low usage rates.
For other sectors, the visa process and specific visa numbers are inadequate.
Visa reform is needed to match labor needs, and they need to be reformed for security, tracking and timeliness. We need visas, which allow some immigrants to stay and be on a path to permanent residency and citizenship, and we need visas which provide for the individual to come and go – in some instances on a daily basis in border communities.
Why do we need an immigrant labor pool anyway?
We are very nearly at full employment. Agriculture, hospitality, food and food processing, retail and construction are experiencing severe shortages in the labor market.
The native-born population is rapidly aging, increasingly educated and has alternatives to lower skilled jobs. Still these jobs are important and are a complement to job growth for both the individual and the economy. Moreover, native-born workers are not always available in the numbers and location needed for many of these jobs.
Does the presence of such a large and illegal labor pool drive down wages for U.S. citizens?
The underground economy and employing people off the books and under the table has security, social and economic consequences, and it does hurt wages. This is why Congress needs to act in a comprehensive fashion so the labor pool is known and legal, and we can eliminate some of the negative consequences of illegality.
Why not just pay more?
Paying more will not increase the size of the native-born labor pool, which has already been determined to be inadequate for many types of employment. A given employer or industry could increase wages to attract more workers, but it does not create more workers overall. Supply and demand of labor only works if you consider global aspects of our economy as opposed to simply looking at state, regional or national labor pools.
A wage spiral will create a lack of competitiveness for certain industries. Some will go out of business, hampering job and capital creation. In some cases this will accelerate the movement of industries and jobs offshore.
What is meant by comprehensive immigration reform?
We must fix our borders, stem the proliferation of fraudulent documents, establish timely, reliable and non-discriminatory methods of verification of work authorized status at the point of employment, and we must fix our visas so they are realistic and relevant.
What is the federal government doing?
Despite the lack of comprehensive reform, Homeland Security is gearing up and stepping up their activities of workplace enforcement. A significant change is also pending by a soon-to-be-published rule by Homeland Security. This rule will expand the concept of “constructive knowledge,” i.e. when an employer has knowingly hired and has under employ those who are not work authorized in this country. This will be one of the first major changes since 1986.
Key Words: Immigration reform in Arizona
