Proposals to tighten worker documentation enforcement

The following description of ICE worksite enforcement of worker documentation, and proposals to tighten identity standards, is excerpted from an article by Stanley Mailman and Stephen Yale-Loehr. The article appeared in the August 22, 2005 issue of the New York Law Journal. The article is posted on the website of the law firm of Miller Mayer, which has other informational resources on immigration.

A common criticism of the President’s proposal, and indeed any program that smacks of an amnesty, is that it will simply invite further violations of our border. To try to prevent future undocumented immigration, both Senate bills would tighten the documentary rules on work eligibility.

Everyone agrees that the current I-9 system for verifying workers’ identity and work eligibility is broken. Counterfeit documents are easily available. Moreover, worksite enforcement has been a low priority for many years. According to a recent report by the Government Accountability Office (GAO), in fiscal year 1999 the former Immigration and Naturalization Service devoted only about nine percent of its total investigative efforts to worksite enforcement. [See footnote 1.]

By fiscal year 2003 that number dropped to about four percent. Id. The number of notices of intent to fine issued to employers for knowingly hiring unauthorized workers or improperly completing I-9 forms, never a high number, decreased from 417 in fiscal year 1999 to just three in fiscal year 2004. [See footnote 2.]

[The] Cain-Kennedy [bill] would create a new electronic work authorization system to replace the paper-based I-9 system. That bill would require the Social Security Administration (SSA) to create a machine-readable card to show work eligibility. The new card would apply to all workers, including U.S. citizens. Employers would swipe the card into an electronic registry to verify the person’s authorization to work. Anyone whose records weren’t in the system would go to a secondary verification system, which is supposed to respond within ten days. ….

Cornyn-Kyl would require the SSA to issue machine-readable, tamper-resistant social security cards within one year of enactment. The bill would create a new electronic employment authorization verification system called the Employment Eligibility Verification Program (EEVP). Employers would have to use the EEVP within one year after enactment. The bill also authorizes the hiring of 10,000 new DHS personnel dedicated to worksite enforcement over the next five years.

The idea of using social security cards as a universal work authorization document is hardly new. Members of Congress sparred over this issue almost 15 years ago. [See footnote 3.]….

There are other problems with using the social security card as the main work authorization document. Most importantly, the social security card is not an effective personal identifier. Without a photo and personal identification information on the card, it is difficult to ensure that the person presenting the card is its owner.

Second, the insecurity of so-called “breeder documents,” on which social security card issuance is based, makes it difficult to prevent the fraudulent use of social security cards. The only way to make social security cards more resistant to counterfeiting is to tighten the security of breeder documents, especially birth certificates. Both Senate bills attempt to do that.

The authors, Stanley Mailman and Stephen Yale-Loehr, are co-authors of Immigration Law and Procedure, published by LexisNexis Matthew Bender.
Footnote 1. See GAO, No. GAO-05-822T, Immigration Enforcement: Preliminary Observations on Employment Verification and Worksite Enforcement Efforts, at 3 (June 21, 2005), available at http://www.gao.gov/new.items/d05822t.pdf.
Footnote 2. See generally Stanley Mailman and Stephen Yale-Loehr, The Complexity of Verifying Work Authorization, N.Y.L.J., Oct. 27, 1997, at 3, reprinted in 2 Bender’s Immigr. Bull. 943 (Nov. 15, 1997).
Footnote 3. See, e.g., Social Security Numbers as National Identifiers Discussed at House Hearing

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