Feds still struggle with illegal immigration

By EDWARD SIFUENTES - Staff Writer | Sunday, March 30, 2008 8:34 PM PDT ∞

Most immigration analysts agree that jobs are what attract most of the nation's estimated 12 million illegal immigrants, but figuring out what to do about it has proved problematic for federal agencies looking to reduce the number of undocumented workers.

Last week, federal officials said they were not giving up on a plan to send letters to employers warning them that certain employees may not have permission to work.

A federal judge in a lawsuit filed by immigrant rights and business groups blocked that plan in November.

And a bill that would require employers to check potential employees' documentation against a federal database is stuck in Congress. Rep. Brian Bilbray, R-Solana Beach, an ardent opponent of illegal immigration and a bill co-sponsor, is trying to collect enough signatures to push the measure forward.

Those efforts are in part a result of Congress' failure to pass an immigration overhaul bill last year. After that legislation failed, in June, President Bush announced a tightening of immigration rules, including the plan to get employers to comply with laws against hiring illegal immigrants.

Supporters of the crackdown on illegal immigration say the efforts are common-sense solutions to the problem.

Critics argue that the new rules are a misguided attempt to turn employers into immigration officers.

"Ever since the failure of immigration reform, politicians have been out looking for something to do, but they haven't thought it through," said Jim Harper, director of information studies at the Cato Institute, a conservative, Washington-based research organization.

Bad data?

Harper wrote an analysis critical of the government's electronic work eligibility database, called E-Verify, which is the cornerstone of Bilbray's bill. The system, which began in 1996 under the old Immigration and Naturalization Service, is a voluntary program with about 17,000 employers using it as of last spring, according to Harper's report.

In a telephone interview last week, Harper said that system is flawed because it's plagued with bad information. His report estimated the system's error rate at about 4.1 percent, which would mean that about 11,000 new hires a day would get flagged with an error message.

Harper said that the electronic verification system was not designed as an immigration enforcement tool and would create more problems than it solves.

Mark Krikorian, director of the Center for Immigration Studies in Washington, which advocates for stricter immigration enforcement, dismissed those criticisms, saying that those most affected by the system would be illegal immigrants.

"It does create problems," Krikorian said. "It creates problems for illegal aliens because they won't be able to get jobs."

Bilbray was traveling last week and unavailable for comment, according to his spokesman Darren Pudgil. A petition to force the Democrat-controlled Congress to debate the E-Verify bill has 181 of the 218 signatures needed to move the measure to the floor, Pudgill said.

While making the E-Verify program mandatory would attempt to identify illegal immigrants before they are hired, the Department of Homeland Security's so-called "no-match" rule would attempt to catch them after they have been hired.

The rule spells out what companies are supposed to do if they receive a letter from the Social Security Administration telling them that federal records do not match those submitted by the employer of information given by employees, such as the worker's name or Social Security number.

The rule, published on the Federal Register on Wednesday, is an attempt to address several problems that a federal judge found in the lawsuit brought by immigrant rights and business groups last year.

No-match

Under the regulation, no-match letters from the Social Security Administration would include a letter from the Department of Homeland Security explaining that employers risk criminal and civil sanctions by hiring illegal immigrants.

It would also include what the government calls "safe harbor" steps that businesses can take to avoid being held responsible and are meant to protect employers who attempt to comply with the letter.

If the discrepancies are eliminated and new, valid work papers are filed within 90 days, employers would enjoy a "safe harbor" from penalties, according to the regulation.

However, U.S. District Judge Charles Breyer in San Francisco said in his November ruling that the safe harbor steps were too strict and could result in legal workers being fired; that it went too far, saying employers who followed those steps could not be sued for discrimination; and that the department did not follow proper procedures in issuing a regulation.

Department of Homeland Secretary Michael Chertoff recently said the rule was a key part of the government's efforts on illegal immigration. Chertoff said the department planned to appeal the judge's ruling.

"We are serious about immigration enforcement," Chertoff said in a news release. "The no-match rule is an important tool for cracking down on illegal hiring practices while providing honest employers with the guidance they need."

Workers wanted

Critics said the rule is overly burdensome, especially for immigrant-dependent industries, such as agriculture. Following the rule, critics say, would require that small businesses invest time and resources to comply and possibly hire new workers.

Other critics say that the no-match letters could force illegal immigrant workers deeper underground.

In a 2006 study, the Pew Hispanic Center, a Washington-based research organization, estimated that illegal immigrants make up about 5 percent of the nation's labor force. About 20 percent of that population is working in construction, about 4 percent of them are working in agriculture.

Eric Larson, executive director of the San Diego County Farm Bureau, said that without an effective temporary worker program, growers could face drastic labor shortages if "enforcement only" measures such as the no-match program are implemented.

Larson said growers try to make sure that workers are legally in the country, but conceded that there are substantial number of illegal immigrants working in the industry using false documents.

"The farming community has no argument with strong immigration enforcement," he said. "But the reality is that the vast majority of farmworkers are foreign-born, so we need to create a way to get those workers with legal documents."

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