News and Articles
SENATE OKs IMMIGRATION BILL
(Now contact your House Representatives…Again!)
By Jon Eric Garde, Esq.
On May 25, the U.S. Senate passed what could be the most
comprehensive immigration reform bill in two decades. The journey leading to
this 62-36 vote was long, arduous and no small accomplishment; yet, for
immigrant advocates, the battle is yet to be won. The approval of S.2611
brokered by Senators Chuck Hagel (R–NE) and Mel Martinez (R–FL) merely set the
wheels in motion for the Senate and the House of Representatives to negotiate
very different provisions in their respective bills. Herein lies the enormous
challenge. Disparate reform priorities divide the House and Senate during an
election year, making a compromise law difficult to arrive at.
Key features within the Senate’s legislation calls for heightened border
security, a path to citizenship for the estimated 11-12 million illegal
immigrants in the country, and a new guest worker program. Along the U.S. –
Mexico border, 370 miles of border fencing would be added, and 2,400 Border
Patrol agents will be added yearly through 2011 over and above the current
11,300 agents. Undocumented aliens who have lived in the U.S. for 5 years or
more would be granted a chance to apply for permanent legal residence and
eventually, for naturalization. Those present less than five years but more
than two years would be given temporary status, and would be forced to depart
this country within three years of the law’s enactment with the promise of
being allowed to return. Finally, individuals who have resided here for less
than 2 years would be required to depart the country and would be permitted to
reapply for admission under a guest worker program that would not guarantee
acceptance, because the total number of foreign guest workers to be allowed is
200,000 yearly. However, legalization would be barred to those who have been
convicted of a felony or 3 misdemeanors, subject to the government’s
discretionary pardon.
The House bill, in contrast, is generally limited to border enforcement by
constructing at least 2 layers of reinforced fencing as well as physical
barriers, roads, lighting, cameras and sensors along 700 miles of the U.S. –
Mexico border. There are no provisions for the legalization of men, women, and
children in the country unlawfully or for a temporary worker program. Instead,
illegal immigrants would be subject to felony charges and criminal penalties
would be mandated for persons who aid illegals to enter or stay in the country
without specifically defining what is meant by giving “aid.”
What is common to both the Senate and House bills is the principle of
worksite enforcement, whereby employers would be required to participate in an
electronic employment verification system. Not surprisingly, the mechanics of
verifying eligibility for employment differ between the House and Senate
proposals.
On one hand, Congressman Tancredo (R-CO) had said that “No amnesty bill will
pass the House so long as Republican leadership holds to its promise to block
legislation that doesn’t command the support of the GOP majority,” and former
House Majority Leader Tom DeLay (R-TX) held that “An amnesty-type path to
citizenship is a non-starter.” On the other hand, Senator John Cornyn (R-TX),
who will be one of the negotiators in the conference committee, asserts,
“Failure is not really an option.” As a precursor for the willingness to
compromise, Representative Mike Pence (R-IN), who heads a group of 100
conservatives in the House, introduced a separate bill that would allow
undocumented aliens to become guest workers, but not permanent residents or
citizens.
For those who want to break this deadlock in support of the belief that the
U.S. is a nation of immigrants, who share a vision to broaden rather than
restrict the American dream, and who sincerely appreciate the contributions of
the immigrant community to our economy and our diverse American Culture, it is
imperative to be heard, NOW! Support comprehensive immigration reform bill by
writing your state representatives…NOW! (Use the American Immigration Lawyers
Association’s webpage at :
http://capwiz.com/aila2/officials/congress/?state=NV&azip=89120&lvl=C&district=03)
IMMIGRATION
ENFORCEMENT IN THE WORKPLACE
By Jon Eric Garde,
Esq.
Immigration reform has become a political tightrope upon which Congress must continue to wrestle after returning from a two-week Easter recess. Through uncertain footing, a compromise immigration bill was brokered by Senators Chuck Hagel (R–NE) and Mel Martinez (R–FL), which was derailed by Democrats led by Minority leader Harry Reid (D–NV), who refused to vote on this compromise bill, simply because it offered little relief to too few prospective immigrants in need of legal reform.
Amidst the wrangling in Washington DC, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have announced a three-phase, multi-year plan to reduce illegal immigration. In particular, the second phase is to build strong worksite enforcement and compliance programs to deter illegal employment. This is seen to complement the department’s border security initiatives by targeting employers of illegal aliens and other criminal networks that support this activity. DHS Secretary Michael Chertoff said “We intend to find employers who knowingly or recklessly hire unauthorized workers and we will use every authority within our power to shut down businesses that exploit an illegal workforce to turn a profit.” ICE Assistant Secretary Julie Myers cited “ICE has no tolerance for corporate officers who harbor illegal aliens for their workforce.”
To put teeth behind the rhetoric, ICE agents just last week raided offices and plants of IFCO Systems, the leading pallet services company in the U.S. with about 5 dozen facilities nationwide, arresting 1,000 employees, and arresting and charging 9 managers with conspiracy to transport, harbor, and encourage illegal workers to reside in the U.S. for commercial advantage. This recent arrest follows one week after that where 9 managers, who were employed by 2 temporary employment agencies HV Connect and TN Job Service, were arrested and indicted for providing illegal immigrants with false documents to businesses in Ohio, New Jersey, and Pennsylvania (that paid them in cash). Three restaurant operators in Baltimore pled guilty to similar immigration charges.
Reports reaching the American Immigration Lawyers Association (AILA) this week stated more ICE sweeps and arrests in New York and New Jersey. Further indications from AILA members themselves revealed that their employer-clients in New York, Ohio, and Illinois are being raided. A marked shift is taking place away from the old strategy of administrative fines as sanctions against employers and towards arrest and arraignment on criminal charges.
The Burden of Employment Eligibility Verification
Long before the recent resurgence of immigration enforcement, employer sanctions were already provided for under the Immigration and Control Act (IRCA). Thus, IRCA makes it illegal for any person to knowingly hire, recruit or refer for a fee any alien not authorized to work and establishes civil and criminal penalties for IRCA violations. However, to protect immigrants’ rights against over zealous enforcement, IRCA created an Office of Special Counsel in the U.S. Department of Justice to investigate and prosecute any charges of national-origin discrimination stemming from unlawful immigration-related employment practices, by asking persons born in other nations to produce more or different documentation from that required of US citizens. The General Accounting Office (GAO) issued a report on March 29, 1990 that the enforcement of IRCA employment sanctions even resulted in employment discrimination, keeping lawful immigrants from employment due to their immigrant status. To avoid litigation, the government defunded the program, leaving employers caught in a quandary, being prevented from rejecting a document that appears to be genuine on its face, while being prohibited from seeking more or different documentation than what would be required from Caucasians or persons who don’t have a foreign accent.
Senate Finance Committee Chairman Charles Grassley (R-Iowa) actually introduced an amendment to the compromise Martinez-Hagel immigration reform bill that would require all U.S. employers to use an electronic verification system to confirm the eligibility of newly hired workers, native born US citizens, naturalized citizens, immigrants and lawfully intending immigrants, alike. The internet-based process is seen to provide either a confirmation or non-confirmation notice within 3 days after an employer submits a name. In case of non-confirmation, the worker is given two weeks to resolve the problem or be terminated. 5,000 companies are now included in a voluntary version of this system in operation since 1996. The program reportedly ran 662,000 in the past 6 months, with about 21,000 necessitating a second manual check. The test would be to expand the pilot to roughly 7 million employers nationwide, with ominous repercussions to business in anticipation of 100s of thousands of non-confirmations. Immigration analysts acknowledge this strict but evenhanded approach to inevitably become part of the immigration enforcement landscape.
True or False: Social Security Numbers
Another key to the DHS/ ICE plan would be the elimination of Social Security abuses that enable undocumented workers to unlawfully secure employment while remaining functionally immune from enforcement. In the case of IFCO Systems, a government affidavit alleged that about 53.4% of the Social Security numbers of roughly 5,800 workers during 2005 were either invalid, did not match the true name registered with the Social Security Administration (SSA) for that number, or belonged to children or deceased persons. Hundreds of thousands of workers are also believed to have registered 000-00-0000 as a Social Security number. Because ICE presently lacks legal authority to routinely access Social Security data to investigate the use of false SS numbers, DHS is requesting legislation from Congress to empower ICE to identify employers that systematically report predominantly fake numbers in order to prosecute employers and employees, alike, for said document fraud.
It is worthy to mention that neither immigration law nor federal tax law presently require a worker to possess a SSN to commence working. IRCA lists the SSN card only as one of possible List C documents to evidence work authorization. The Internal Revenue Code only calls for an application for a SSN to be made within 7 days of the start date for purposes of taxable wages. SSA official guidelines to employers advise that as long as the employer has confirmation that the employee has applied for an SSN in compliance with IRS rules, then the employer should show 000-00-0000 for the SSN until the SSN is obtained. If the number is not obtained in time for filing wage reports (Form W-2), the employer may enter “Applied For” in box D.
When more than 10 Form W-2s in a wage report do not match SSA records, and the no-matches exceed 0.5% of the total number of Form W-2 items in the report, SSA sends the employer a no-match letter. SSA has clearly stated that the letter does not imply that the employer or employee intentionally gave the wrong information and that it must not be used to take any adverse against an employee, such as lay off, suspension, termination, or discrimination. The letter is NOT an immigration enforcement tool, but rather, it is a tool for the SSA to maintain an accurate database to allow the corresponding credit of an employee’s earnings to the right SSN and ensure a proper determination of benefits.
While the Internal Revenue Service (IRS) has the legal authority to fine an employer $50 for each incorrect SSN on a W-2 and up to $250,000 per year, penalty waivers are available where the employer relied in good faith on the SSN provided by the employee. If the IRS advises the employer that an employee’s SSN is incorrect, the employer may have to document solicitation from the employee of the correct SSN for two more years. However, given that administrative errors would exist even without use of false SS numbers by unauthorized workers, Congress will face considerable difficulties establishing a fair and legal way to prove immigration violations simply through use of incorrect SS numbers without a significant number of erroneous confrontations with lawful employees.
Conclusion
The overwhelming majority of falsely documented persons are hardworking family breadwinners and taxpayers (many with US citizen family members), comprising millions who live peaceably among us, yet who provide a sea of anonymity for a proportionately few number of sharks to hide until ready to strike. A huge number of falsely documented workers conceal a proportionately few terrorists, who are a monumental security threat. Thus, Bin Laden continues to boast of his plans. We must drain the sea to catch the sharks! Failure to do so simply ignores a ticking time bomb.
The only way to drain the sea of falsely documented workers is to permit unlawfully present taxpayers and their families to remain in the communities they call home. The economy should continue to benefit from their contributions of hard work and tax revenues, viable families must remain in tact, U.S. citizen spouse and children must not be driven to welfare, and more importantly, falsely documented workers must become legally documented by offering the goal of permanent residence so as to enable our government to locate and corner those now hiding among us, meaning to do harm. Sizeable application fees could be charged and would be gratefully paid by intending U.S. citizens who know the value of the American dream, raising funds for additional border fortification. However, mass removal of undocumented workers would diminish a sizeable payroll tax base presently available for security expenditures.
The May 1st national strike will certainly bring home the economic costs of puristic immigration restrictionism, when millions of Hispanic consumers will withhold their purchasing power and their productive labor from our economy. Yet, these costs don’t even factor the forty billion dollars annually over the next five years that must be doled out by taxpayers in order to deport the vast majority of undocumented workers. Ironically, national security can only co-exist with economic stability by offering immigration benefits to those peacefully and productively living among us, requiring undocumented immigrants to willingly fund border security. Continued delay in building consensus between immigration and security advocates can only serve to compromise the economic well being and security of Americans under the misguided guise of national security in a manner that only Osama Bin Laden could have intended.
