Worker database, tougher sanctions top Congress' list of ways to keep illegal immigrants from getting jobs

11:48 AM MST on Monday, June 19, 2006

By MICHELLE MITTELSTADT / The Dallas Morning News

WASHINGTON – More Border Patrol agents and fencing may make a dent in illegal immigration, but experts say there's only one sure-fire way to halt the flow: Ensure that illegal immigrants can't get jobs.

The promise of decent-paying work is the magnet that has enticed countless millions to come here illegally or to overstay their visas.

Having tried – and failed – 20 years ago to weaken that magnet, Congress is back again, this time promising a better fix.

Though the House and Senate have passed vastly different immigration bills – so divergent that it may prove impossible to bridge the gulf this year – they share a common philosophy to pare the illegal workforce.

Both bills would require all businesses to run workers' names and Social Security numbers through an electronic government database to make sure they are entitled to work. And both would put more teeth into what's been an anemic employer sanctions system, hiking penalties for knowingly hiring illegal immigrants.

Border security "is not enough," said Sen. Barack Obama, an Illinois Democrat who worked with Sen. Charles Grassley, R-Iowa, to shape the Senate proposal. "Real enforcement also means drying up the pool of jobs that encourages illegal immigration."

Cracking down on rogue employers and verifying workers' status are immigration-control concepts that have been around since the 1950s, advocated by one blue-ribbon commission after another.

Yet as Congress reshaped immigration law in the 1980s and 1990s, politicians fell short, hobbled by policy errors, weak enforcement and the rise of a potent fake-documents industry.

The stakes are high as the country struggles to stop a tide that adds an estimated half-million people yearly to a population that tops 12 million. About 14 percent live in Texas.

"Without a workable verification system, there is no point in having a bill dealing with immigration," Mr. Grassley said.

While some business critics argue the congressional plans would prove terribly disruptive to boss and worker alike, some conservatives on Capitol Hill contend Congress isn't going far enough.

"Why would we create a system that is designed to fail?" Sen. John Cornyn, R-Texas, complained during last month's Senate debate, noting penalties wouldn't kick in until the database is 99 percent accurate – which could take years.

He is convening a hearing of his Senate immigration subcommittee today to determine how to build an effective system.

Dallas attorney Steve Ladik, a former president of the American Immigration Lawyers Association, said accuracy is paramount.

"You have to have a very low margin of error when you're talking about people's lives and their jobs," he said.

Lawmakers have only to look at the failures of the 1986 law – which for the first time made it unlawful to employ an illegal immigrant – to see how they could run aground again.

Then, as now, a grand bargain is being tendered: Legalize millions of illegal immigrants while promising to shut the door to future arrivals by enacting a tough employer verification system.

But Congress sowed the seeds for failure in 1986, telling employers to accept any one of 29 different forms of ID to document a new hire's right to work – ranging from driver's licenses to tribal documents. Businesses were warned they could be prosecuted for discrimination if they scrutinized some workers' records more closely than others'.

The result was confusion. And enforcement plummeted after the first few years, largely relegated to periodic, showy worksite raids.

Only 90 investigators were assigned in 2003 to ensure the nation's 7.3 million employers obeyed the law. In 2004, the government issued three notices of intent to fine employers for violations.

To date, 8,626 employers (675 in Texas) participate in a voluntary employment-verification database established in 1997. Known as Basic Pilot, the program scans names and Social Security numbers against Social Security Administration and Homeland Security Department databases – telling employers if new hires are authorized to work.

Both the House and the Senate would expand the Basic Pilot system – which has been criticized by the General Accountability Office, the Social Security Administration's inspector general and others for relatively high error rates and slow resolution of disputed cases.

The U.S. Chamber of Commerce and other critics argue that the system is too flawed to be used and that its 15 percent initial error rate could ensnare hundreds of thousands of qualified workers.

"We don't like Basic Pilot," said Laura Reiff, co-chair of the Essential Worker Immigration Coalition, a business group seeking legalization and temporary worker programs. "We need time to develop an accurate system."

But some Basic Pilot participants in Texas and beyond are quite pleased with the program.

At Staffmark, a staffing company that provides temporary workers in Dallas and around the country, the reports are glowing.

"We believe that it gives us a competitive advantage," said Andrea Edwards, Staffmark's vice president of marketing. The firm can tell customers, "You are not going to get caught in any negative publicity or backlash by finding out some of your employees at your site are not authorized to work," she said.

Mark Klein of Cargill Inc., an agribusiness giant with three beef processing plants in Texas, said the meatpacking company has not experienced widespread difficulties with Basic Pilot.

"We gladly use it," he said. "It's another tool to help us verify employment eligibility."

Mr. Klein said Cargill would welcome making the system more robust. The GAO and other investigators note that Basic Pilot confirms only whether the name and Social Security number match the identity of someone eligible to work – not whether multiple people are using the same information or that the worker actually is who he or she claims to be.

The Social Security Administration found more than 9.5 million no-matches in 2004 but is barred from sharing that information with immigration inspectors. The House and Senate would permit limited information sharing.

The Commission on Immigration Reform, headed by former Texas congresswoman Barbara Jordan, in 1994 recommended use of a counterfeit-resistant Social Security card – a proposal Mr. Cornyn has taken up.

But civil libertarians fear such a card would be tantamount to a national ID. And critics say the Basic Pilot expansion would be the first step toward a Big Brother-ish system in which government knows too much about its citizens.

Further, the Social Security Administration estimates it would cost more than $9 billion to reissue 300 million secure cards.

Mandating a tamperproof card will only lead to more document fraud and identity theft, said ACLU counsel Tim Sparapani.

"You don't need a separate new document to do employee verification," he said.

What's relevant, supporters of the Senate plan say, is to verify that the name and Social Security number match – and to ensure that no one else is fraudulently using the information.

The ACLU contends the congressional plans constitute a "no-work" system because database errors would result in firings. "They are going to set up a system which will literally prevent hundreds of thousands of Americans, much less lawful immigrants, from working," Mr. Sparapani said.

The Homeland Security Department, which administers Basic Pilot, notes the error rate has declined. And Homeland Security Secretary Michael Chertoff insists his department can effectively establish a mandatory employment verification system – if given the time to do so.

But with more than 50 million new job starts every year, Mr. Sparapani and others contend the database will be swamped.

"It's going to be hard work," Mr. Chertoff acknowledged. "But we can do this.

"The pieces that we need to build this system, they are hard, they are going to cost some money, they are going to require people to bite the bullet and do some things that are challenging," he said. "But there is an end state here that gives us control of our borders."

E-mail mmittelstadt@dallasnews.com

Congressional negotiators have yet to meet to begin working out differences in the House and Senate immigration bills. A comparison of employer verification and sanctions proposals in the two bills:

HOUSE BILL

Within two years of enactment, requires employers to perform mandatory verification of new workers, checking their names and Social Security numbers against electronic government databases to ensure they are entitled to work. The checks must be performed within three days of hiring.

Within six years, stipulates that employers must have run the names of all existing workers through the databases.

Increases maximum fines for employing illegal workers to up to $40,000 per worker, with a minimum $5,000 fine for a first offense.

Requires the Homeland Security Department to investigate in cases where a single Social Security number is apparently being used by multiple workers.

Continues to require employers to fill out and retain I-9 employment authorization forms.

Allows workers wrongly terminated because of erroneous information in the government databases to seek redress under the Federal Tort Claims Act.

SENATE BILL:

Makes employer verification mandatory for new hires 18 months after Congress provides funding to establish an electronic verification system.

Would not require employers to go back and check existing workers.

Increases maximum fines for employing illegal immigrants to up to $20,000 per worker.

Trims the list of acceptable identification that can be presented to employers to four from 27. Americans must show either a passport or a secure state ID such as a driver's license, while legal immigrants can show their permanent resident card or employment authorization card.

Adds at least 2,200 new immigration and fraud detection investigators over five years to Immigration and Customs Enforcement.

Requires the Social Security Administration to alert the Homeland Security Department in cases where an employer has more than 100 cases in which workers' names and Social Security numbers don't match, or in cases where 10 or more employees are sharing an identical taxpayer ID.

Abolishes the I-9 employment authorization system.

Allows workers wrongly terminated because of faulty government data to seek compensation for lost wages from the U.S. government.