Proposed DHS Rule Will Help Prevent Illegal Employment
Cornyn to chair hearing on worksite enforcement, ways to prevent the failures of the 1986 amnesty later this month
WASHINGTON—U.S. Sen. John Cornyn (R-Texas), chairman of the Immigration, Border Security and Citizenship subcommittee, discussed a proposed DHS rule Friday that will help responsible employers ensure that they are not employing illegal immigrants. Cornyn announced that he will hold a hearing later this month on worksite enforcement and the need to prevent the failures and mistakes of the 1986 amnesty (floor speech follows):
“The Department of Homeland Security is proposing a rule that will help responsible employers ensure that they are not employing illegal aliens unauthorized to work in the United States. It outlines clear steps that employers can take when they learn from the Social Security Administration that the social security number filed on behalf of an illegal alien does not match. If businesses follow these procedures in good faith, they won’t be subject to sanctions. And it will provide guidance to employers who seek to comply with the law, while allowing government to prosecute those who turn a blind eye.
“But while I applaud this action by DHS, we must do more to solve the underlying problem: employers do not have a reliable method to ascertain whether employees are eligible to work in the United States. So I also encourage the administration to issue a related regulation that would allow employers to move away from a paper-based ‘Form I-9’ system.
“Electronic verification has been tested for over 10 years, and an independent review of the program found that 96 percent of participating employers believed that the electronic verification system is an effective tool for employment verification. And in my capacity as Chair of the Immigration Subcommittee, I intend to hold a hearing in the coming weeks to further explore employment verification.
“Twenty years ago, Congress sold Americans on an amnesty on the basis that an employment verification system would reduce future illegal immigration. Yet here we are today wrestling with the problem of 12 million illegal aliens. Americans will not forgive us if we repeat the same mistake. The consequences, for our society, for our national security, and for our economy, are just too great.
“I will therefore work diligently during the conference with the House to develop an employment verification system that reduces employer burdens and protects worker’s rights – but which will shut out any illegal alien from obtaining work in the United States.”
Sen. Cornyn’s full statement on the Senate floor (as prepared) follows:
The Senate and the House have both passed immigration bills that would overhaul the employment verification laws.
Restricting the employment of undocumented workers as a means of reducing illegal immigration is not a new concept, and for decades policy-makers have recognized that eliminating the magnet of illegal employment is the key to controlling illegal immigration.
In 1981, the bipartisan Select Commission on Immigration and Refugee Policy recommended legislation making it illegal to hire undocumented workers. In 1997, the bipartisan U.S. Commission on Immigration Reform stated that eliminating the employment magnet is the linchpin of a comprehensive strategy to deter unlawful immigration.
The U.S. Commission on Immigration Reform went on to conclude that the “the most promising option for verifying work authorization is a computerized registry based on the social security number.”
Despite 25 years of consensus, current employment verification laws are unworkable and unenforceable. An employer must review some combination of 29 different documents to determine whether a new worker is legal.
Document fraud and identity theft have contributed to the problem, making it easier for unscrupulous employers to look the other way and hire unauthorized workers.
The employer sanctions provisions in the 1986, which were supposed to be a trade-off for granting amnesty to 3 million illegal aliens, have never been effective. So while the amnesty was a success, the enforcement necessary to avoid another build-up of illegal aliens was never delivered.
The Department of Homeland Security is announcing today the publication of a regulation that addresses one deficiency in the current process.
DHS is proposing a rule that will help responsible employers ensure that they are not employing illegal aliens unauthorized to work in the United States.
When hired, employees in the U.S. must present documents to their employers to show that they are authorized to work in the United States. Many people use their social security card as one of these documents.
When unauthorized aliens try to defraud their employers by presenting fraudulent identification or social security cards, the employers will often receive a “no match” letter from the Social Security Administration. This “no-match” letter informs the employer that the name associated with the social security number filed does not “match.”
Until now, many employers have not known what steps to take upon receiving a “mismatch notice.” Many mistakenly believe that they must immediately fire the employee.
The absence of clear guidance has frustrated employers and, all too often, legal employees end up losing their jobs.
The proposed rule outlines clear steps that employers can take in reaction to receiving “no-match” letters.
The proposed rule provides safe-harbor procedures for employers. If businesses follow these procedures in good faith, they can be assured that they will not be subject to sanctions.
While the vast majority of employers seek to comply with the law, many employers turn a blind eye.
In fact, a small percentage of employers are responsible for a large percentage of no-match letters. The GAO reported that, between 1985 and 2000, only 8,900 employers were responsible for over 30 percent of no-match reports.
Some of the other statistics in the GAO report are even more troubling:
- Several employers used one Social Security Number for over 100 different employees
- One employer used a single Social Security number for 2,580 different wage reports
- 8.9 million wage reports had all zeros in the Social Security number field
- 43 different employers used the same social security number for more than one employee – for sixteen years in a row
The Department of Homeland Security recently conducted the largest worksite enforcement raid to date against IFCO Systems, arresting over 1,000 illegal aliens and charging seven managers with criminal violations.
Approximately 53.4 percent of the Social Security numbers for IFCO Systems were invalid, and the Social Security Administration had notified the company over 13 times regarding the discrepancies.
This regulation will therefore provide guidance to employers who seek to comply with the law, and will allow the government to prosecute those who turn a blind eye.
But this action by the Department of Homeland Security is only a band-aid on the underlying problem: employers do not have a reliable method to ascertain whether employees are eligible to work in the United States.
A paper-based system will always be vulnerable to fraud and abuse.
Electronic verification has been tested for over 10 years, and an independent review of the program found that 96% of participating employers believed that the electronic verification system is an effective tool for employment verification.
The Senate immigration bill improves upon the current paper-based system and requires an expansion of an electronic verification system.
But the Secretary of Homeland Security told me that he has problems with some of the provisions in the Senate bill and that, as drafted, it is “unworkable.” In my capacity as Chair of the Immigration Subcommittee, I intend to hold a hearing in the coming weeks on employment verification.
Twenty years ago, Congress sold Americans on an amnesty on the basis that an employment verification system would reduce future illegal immigration. Yet here we are today wrestling with the problem of 12 million illegal aliens.
Americans will not forgive us if we repeat the same mistake. The consequences, for our society, for our national security, and for our economy, are just too great.
I will therefore work diligently during the conference with the House to develop an employment verification system that reduces employer burdens and protects worker’s rights – but which will shut out any illegal alien from obtaining work in the United States.
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Cornyn is a member of the following key Senate Committees: Armed Services; Judiciary; Budget, Small Business and Entrepreneurship; and Joint Economic. Cornyn was previously Texas Attorney General, Texas Supreme Court Justice and Bexar County District Judge.
