IMMIGRATION LAWYER'S VIEWPOINT, NOT A SPECIAL INTEREST OR AGENDA!

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Viewpoints, Outlook

May 8, 2008, 11:00PM
Stop making employers the immigration enemy
Those doing hiring should be enlisted by feds as allies


By JAY AIYER


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The recent raid of the Shipley Donut factory here has brought the immigration debate back to our doorstep. During the first six months of this fiscal year, Immigration and Customs Enforcement (ICE) detained more than 2,700 illegal immigrants in its work-site operations, putting it on pace to significantly top the more than 3,600 apprehensions made for all of fiscal 2006.

Even more ominous for businesses, ICE is increasingly bringing criminal charges in work-site investigations, hoping to go after those who knowingly hire illegal immigrants. Already in fiscal 2008, criminal charges have been filed against 527 people, compared with 718 for all of fiscal 2006 and just 25 in fiscal 2002.

This approach is misguided, a waste of scarce resources and potentially destructive to our economy.

There is little doubt that millions of undocumented aliens are working in the United States without authorization. We all know that. But we must also accept the reality that we as a society watch, as they build our homes, care for our children and grow the food we eat. They are part of the modern American workplace, and we need to take an approach that is realistic and part of broader immigration reform.

The current approach of raid and detention is neither of those. Moreover, the approach itself undermines its stated goal by driving those already in the underground economy further underground.

The reality is that the overwhelming numbers of businesses never knowingly hire anyone they believe is here illegally. They are required by law to inspect employment authorization and to determine if a person can legally work. One problem is that there is no realistic way to verify the authenticity of documents.

A possible solution would be to invest in a workable national database that can accurately determine the work authorization of workers. Instead, the government has decided to step up arrests and detention that cost millions more.

Programs like the "E-Verify" program are still too error-prone to be of assistance, and current law doesn't even require such verification. Moreover, while businesses must visually inspect documents, they run the risk of being accused of discrimination if they ask too many questions. Additionally, the documents themselves often can be easily duplicated and forged, making it even more difficult.

Businesses have a duty to inspect work authorization documents and maintain an "employment eligibility verification form" known as an I-9. For the most part, the majority of employers try their best to comply. But the federal government should not place the entire burden of enforcement on them. Instead the government needs to bring employers in as partners.

We all recognize that there are some employers out there who collude with document vendors to their advantage. That is where ICE's resources should be targeted — not in random raids.

All businesses should conduct regular audits of their own hiring policies and procedures to make sure that all employees are properly filling out I-9 documents. However, federal authorities need to recognize that businesses ought to be encouraged and applauded for a self-audit process without potential penalties from ICE.

Our current immigration system is broken. Ultimately, the only real answer is to embrace a comprehensive approach that acknowledges the reality that we have more than 12 million hardworking individuals here who lack legal status but play a crucial role in our daily lives.

Federal authorities must stop viewing them — and their employers — as the enemy.

Aiyer is an immigration lawyer at Tindall & Foster, P.C. He can be e-mailed at jaiyer@tindallfoster.com.