By Sean Higgins
President-elect Trump’s promise of vastly stepped-up immigration enforcement doesn’t have just foreign-born communities worried about what’s next. Many in business are apprehensive, too.
Any policy that promises to stop illegal immigration will have to also strictly police the people who are the main reason why immigrants come to the U.S.: employers.
Exactly what employers will face is not clear, but experts on both sides of the issue predict the focal point likely will be Trump’s vow to “turn off the jobs magnet” by making the E-Verify system for checking a worker’s legal status nationally mandated.
“They’d have to link all new hires to the E-Verify database,” said Alex Nowrasteh, policy analyst for the free-market Cato Institute, which favors pro-immigration policies. There’s no other way for Trump to get broad compliance from businesses without it, he said.
Stay abreast of the latest developments from nation’s capital and beyond with curated News Alerts from the Washington Examiner news desk and delivered to your inbox.
Mark Krikorian, executive director of the Center for Immigration Studies, which favors restrictive policies, agrees that is the likely direction.
“It would be appropriate to increase the civil fines dramatically and/or lower the bar for criminal prosecution as part of a mandatory E-Verify bill,” Krikorian said. “Charges would be much easier to prove because the crime would be failure to verify a new hire, not the harder-to-prove offense currently of ‘knowingly’ hiring an illegal alien.”
The government also would have to expand the penalties for violations found in audits of the I-9 federal employment verification reports, he added.
A national E-Verify mandate has been a priority of Sen. Jeff Sessions, R-Ala., who has been Trump’s policy guru on immigration and is the president-elect’s pick to head the Justice Department.
Congress created the E-Verify system in 1996 as part of an immigration reform bill. The system compares an employee’s Social Security number and other data with the federal government’s records.
If the Social Security number is already in use or there is another anomaly, the administration flags the number and alerts the employer. E-Verify does not say whether a person is legally eligible to work, but it does raise a red flag.
A flagged worker may not necessarily have an immigration issue. A minor variance in the spelling of a name in official documents, for example, can prompt an alert.
The system is not mandatory under federal law, but 20 states require its use, though the requirements vary from state to state. Trump has vowed to make it required in all 50 states.
Though it has been around for two decades, E-Verify’s effectiveness has been disputed. A study Nowrasteh conducted last year of four states —Alabama, Arizona, Mississippi and South Carolina — that require E-Verify to be used for all new hires found that employers complied with it about half the time.
Most faced little repercussion for not doing so, as state officials showed a marked reluctance to pursue cases against local businesses. E-Verify advocates counter that such statistics show the need for a national policy.
A 2014 bill co-sponsored by Sessions called the Accountability Through Electronic Verification Act would have treated any private employer’s failure to use E-Verify any time it hired someone an automatic presumption that it had hired an illegal immigrant and flagged the company for federal investigation.
Under current law, an employer found to knowingly hire an illegal immigrant face fines ranging from $200-$3,000 per hire, escalating for subsequent offenses.
Kim Thompson, a lawyer who advises employers on immigration matters for the firm Fisher & Phillips, notes that large employers will be able to adjust. The ones that will be hurt are smaller employers who use unskilled labor. Proving a flagged worker’s legality to E-Verify can be time-consuming, and unskilled labor is typically needed for immediate projects such as picking crops.
Another unresolved question, Thompson notes, is whether the E-Verify requirement would be made retroactive. “How will it be put into effect? Is it only going to be for future hires, or will it require employers to go back and check their existing workers? I think that is scaring a lot of people,” she said.
Trump also has called for tripling the number of Immigrations and Customs Enforcement officers, which is likely to lead to more raids on workplaces and more prosecutions.
Another idea the president-elect has proposed is that companies sponsoring immigrants on high-tech visas be required to pay higher wages. He also wants wants to limit issuances of work visas until unemployed U.S. workers are given a shot at any openings.
Business groups, meanwhile, are watching.
“We don’t even know who he will have working with him in the administration and at the agencies,” said Chamber of Commerce spokeswoman Blair Holmes. “We need to see what direction he heads in the coming weeks and months, but we believe there may be some opportunities for the chamber to work with the new administration and Congress on important immigration issues, and we’re look forward to it.”