Unauthorized Employment in the United States: Issues and Options April 20, 2007 Andorra Bruno, Specialist in Social Legislation, Domestic Social Policy http://www.opencrs.com/rpts/RL33973_20070420.pdf [full-text, 16 pages]

Summary As Congress considers immigration reform and ways to address the unauthorized alien population, the issue of unauthorized employment is the focus of much discussion. The unauthorized alien working population, like the unauthorized alien population generally, has been growing steadily. There were an estimated 7.2 million unauthorized workers in the U.S. civilian labor force in March 2005. It is widely accepted that most unauthorized aliens enter and remain in the United States in order to work. Thus, eliminating employment opportunities for these aliens has been seen as an approach to curtailing unauthorized immigration.

Provisions enacted by the Immigration Reform and Control Act (IRCA) of 1986, which are sometimes referred to as employer sanctions, made it unlawful for an employer to knowingly hire, recruit or refer for a fee, or continue to employ an alien who is not authorized to work. It also established a paper-based employment eligibility verification system, known as the I-9 system, which requires that employers examine documents presented by new hires to verify identity and work eligibility, and complete and retain I-9 verification forms. There is general agreement that the I-9 process has been undermined by fraud. Employers violating prohibitions on unauthorized employment in the Immigration and Nationality Act (INA) may be subject to civil or criminal penalties. The Department of Homeland Security's Immigration and Customs Enforcement (DHS/ICE) is responsible for enforcing the INA prohibitions on unauthorized employment.

Building on the employment verification system established by IRCA, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) directed the Attorney General to conduct three pilot programs for employment eligibility confirmation that were to be largely voluntary. Under the Basic Pilot program, the only one of the three pilots still in operation, participating employers verify new hires' employment eligibility by accessing Social Security Administration (SSA) and, if applicable, DHS databases.

A variety of options has been put forth to curtail unauthorized employment and related practices, a selection of which is discussed in this report. Some of these options would build on the current employment eligibility verification system; these include making electronic verification mandatory, increasing existing penalties, or increasing resources for worksite enforcement. Others represent new approaches to address unauthorized employment, such as shifting responsibility for employment eligibility verification from employers to the federal government.

This report will be updated if developments warrant.

Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Estimates of Unauthorized Workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Prohibitions on Unauthorized Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Basic Pilot Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Worksite Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Options for Addressing Unauthorized Employment . . . . . . . . . . . . . . . . . . . . . . . 7 Mandatory Electronic Employment Eligibility Verification . . . . . . . . . . . . . 7 Increased Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Unauthorized Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Unfair Immigration-Related Employment Practice . . . . . . . . . . . . . . . . 9 New Penalty for Unauthorized Employees . . . . . . . . . . . . . . . . . . . . . . 9 Increased Worksite Enforcement-Related Resources . . . . . . . . . . . . . . . . . . 9 Data Sharing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Changes to Issuance and Acceptance of Documents . . . . . . . . . . . . . . . . . . 10 Government Responsibility for Employment Eligibility Verification . . . . 11 Shift Focus to Enforcement of Workplace Protections . . . . . . . . . . . . . . . . 12 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

List of Tables Table 1. Estimates of Unauthorized Employment in Selected Industries, 2005 . . 2

**************************************** Stuart Basefsky Director, IWS News Bureau Institute for Workplace Studies Cornell/ILR School 16 E. 34th Street, 4th Floor New York, NY 10016

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