Here is the immigration law and the loophole.

[Cleita]

Considering that many here seem to be focusing on the illegality of the undocumented workers, I went googling with the help of a legal eagle Duer to find out what legal obligations the employer has and what he would be fined for not complying with the law. Here it is:

http://www.doleta.gov/dinap/bulletins/87-07.cfm

Second, the employment eligibility of each worker will have to be verified by the employer, using an INS-specified form, the I-9. Where the JTPA program serves as the employer, as is the case for many summer youth and work experience programs, the JTPA program would have to verify employment eligibility. Employers determined to have failed to comply with the employment verification requirements may be subject to a civil penalty of not more than $1,000 for each individual for whom such a violation occurred. Employers who knowingly hire unauthorized aliens may be subject to a fine of up to $2,000 for the first violation and up to $10,000 for subsequent violations.

Here’s the loophole:

http://www.lectlaw.com/files/emp34.htm

- Permit employees to present any document or combination of documents acceptable by law. Employers cannot prefer one document over others for purposes of completing the I-9 Form. Authorized aliens do not carry the same documents. For example, not all aliens who are authorized to work are issued "green cards." As long as the documents are allowed by law and appear to be genuine on their face and to relate to the person, they should be accepted. Not to do so is illegal. Acceptable documents are listed on the reverse side.

So as long as a worker fills out the INS I-9 form and present documentation that appears to be genuine, they are off the hook. So if you don’t want undocumented workers here, write your Senators and Congresspeople, and demand that the law be enforced for employers as well as the workers. The employers will keep hiring cheap labor if no one enforces the law.

[acmejack]

1. And here are those documents:

Which are on the reverse:

List A
Documents that Establish Both Identity and Employment Eligibility.

• U.S. Passport (unexpired or expired)
• Unexpired foreign passport that contains a temporary I-551 stamp
• Alien Registration Receipt Card or Permanent Resident Card (INS Form I-551)
• Unexpired Employment Authorization Card that contains a photograph (Form I-766, Form I-688, Form I-688A, Form I-688B)
• For non-immigrants authorized to work for a specific employer: an unexpired foreign passport with an Arrival-Departure Record, Form I-94, bearing an unexpired endorsement of the individual's nonimmigrant status.
• Unexpired foreign passport with a Readable Immigrant Visa (MRIV) and unexpired temporary I-551 stamp (valid until the expiration date set forth on the temporary I-551 stamp).
• Unexpired foreign passport with a MRIV containing temporary I-551 language and endorsed with an unexpired DHS admission stamp (valid for one year from the date of admission).
See also the receipt rule discussion below for additional documentation.

OR
List B
Documents that Establish Identity
• Driver's license or ID card issued by a state or outlying possession of the United States provided it contains a photograph or information such as name, date of birth, sex, height, eye color, and address
• ID card issued by federal, state or local government agencies or entities provided it contains a photograph or information such as name, date of birth, sex, height, eye color, and address
• School ID card with a photograph
• Voter's registration card
• U.S. Military card or draft record
• Military dependent's ID card
• U.S. Coast Guard Merchant Mariner Card
• Native American tribal document
• Driver's license issued by a Canadian government authority

For persons under age 18 who are unable to present a document listed above:

• School record or report card
• Clinic, doctor, or hospital record
• Day-care or nursery school record.

AND
List C
Documents that Establish Employment Eligibility
• U.S. Social Security card issued by the Social Security Administration (other than a card stating it is not valid for employment or valid only with INS work authorization)
• Certification of Birth Abroad issued by the Department of State (Form FS-545 or Form DS-1350)
• Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the United States bearing an official seal
• Native American tribal document
• U.S. Citizen ID Card (Form I-197)
• ID Card for use of Resident Citizen in the United States (Form I-179)
• Unexpired employment authorization document issued by the Department of Homeland Security (other than those listed under List A), including (1) a Form I-94 identifying the holder as an asylee (by stating "asylum", "asylee" or appropriate provision of law), (2) other documentation issued by DHS (or the former Immigration and Naturalization Service (INS)) that identifies the holder as an asylee, lawful permanent resident, refugee (except for the Form I-94 identifying the holder as a refugee, which is considered a receipt only), or other status authorized to work in the United States incident to status, or (3) an on-line Case Status Service report from U.S. Citizenship and Immigration Services showing that an application for an employment authorization document has been approved.

[Cleita]

2. Thanks, I couldn't open the PDF files that had the actual forms

and pamphlets.

[Cleita]

3. Kick for the facts.

:kick:

[Cleita]

4. ....

[Cleita]

5. ....

[Gormy Cuss]

6. Comment and kick.

That's from Reagan's great immigration reform act of 1986, isn't it? The one that he promised would stop the flow of illegal immigration? The piece of crap that forces all employees to reveal much more info to employers as part of the hiring process than was needed before it, and that hasn't slowed down the immigration? That act?

That loophole is large enough to drive a Mack truck through and is probably the basis for lack of enforcement. I do think that it's not a bad idea to have some weaker penalty for a first time offense on a small scale but repeat offenders and large scale employers of people should meet swift and severe penalties, including potential jail time for the worst offenders.

I'm old enough to remember when a standard TV and movie premise was the sweep of sweatshops and fields by immigration agents who rounded up people and deported them. If the immigration service began those raids again but required the employers to pay the full cost for those workers to become legal residents in addition to paying hefty fines, perhaps employers wouldn't find it so advantageous to use this workforce.

[Cleita]

8. We have to attack the perpetrators of this system, not

the victims. Yes this is from Reagan's big plan. I don't expect anything better from the guest worker program they are trying to implement now.

[countryjake]

9. That's what I've been pounding into my Senators...

because those old "guest worker" visas have been used right here in our state to usurp the organizing efforts by farmworkers and they have never actually enforced the laws that were included in the '86 provisions.

That bill that made it out of committee last week still needs major adjustment, as far as I'm concerned, since McCain has tried to elbow his way into Kennedy's original plan and satisfy big business, too. McCain is an opportune ass licker who will do anything now, to suck up votes.

Any guest worker must be guaranteed a voice along with his visa and a system of recourse against unfair labor practices, including an interpreter (what's with this "learn the language" crap?) and the right to unionize or take grievances to the NLRB.

[nadinbrzezinski]

12. The only thing they need to do is FINE the employers

to the point it is cost prohibitive. Granted, 1000 for a small time employer is quite a bit, but piss for Walmart. Point is, you start fining the employers ON A REGULAR BASIS and make it prohitibive, they will NOT hire illegal workers (for the most part, a shadow economy exists every where) and ilegals will stop coming. Why? They cannot find work. Reagan signed this into law, and IT HAS NOT BEEN ENFORCED ever since in a significant manner. Today it is simply NOT enforced.

[Cleita]

13. They can't enforce it because of the I-9 loophole.

All an employer has to do is say he accepted the documentation and believed it was genuine even if it was a fake. It lets him off the hook. The law should say that accepting fake documentation still makes him culpable, even if he thought it was genuine. Whatever happened to ignorance of the law is no excuse for breaking the law?

[Phx_Dem]

15. it's not a loophole

the problem is the SSA. read my other post.

[Phx_Dem]

25. not a good idea

"The law should say that accepting fake documentation still makes him culpable, even if he thought it was genuine."

what you are suggesting is absurd, the problem is with the SSA and their crappy computer system.

[Cleita]

32. Huh,? It used to be the law. I have gotten into trouble over some

obscure law about what I could put in my front yard that I didn't know about and got a ticket anyway.

The officer issuing the citation said, "Ignorance of the law is no excuse. You still broke the law."

Researching the matter with lawyer friends, it turns out it's a commonly held legal position.

[Phx_Dem]

35. because it's not about ingorance

it's about the employer making a REASONABLE effort, has nothing to do with not knowing the law.

FYI your right that if you break the law, you can't say "I did not know"

[Phx_Dem]

22. It's not a loophole

The problem is the SSA. As an employer, I have to make a "reasonable" effort to ensure that the IDs are real, that's it.

[Cleita]

33. And that's the problem. Incidentally, the SS doesn't issue

immigrant documents, the INS does. All the SS does is issue SS#'s with the acceptable documentation like a birth certificate. A legitimate birth certificate is also easily obtained. This is where the INS falls down on the job, but they can't really do anything because the law is so unenforcible from their end as well because of the loopholes. All they can do is round up the immigrant worker, but they can't really touch the employer of the immigrant worker. This is a fact that companies like Wal-Mart exploit. I wouldn't doubt that they coach the illegals in ways to get around the law.

[Porcupine]

7. Ah, the reasonable fake excuse exempts employers........

from charges. Meaning that one guy could have about 20 "jobs" for which a fuzzy photocopy of his ID is valid. Hell a crooked employer could just tell the illegal he's hiring to bring a photocopy or keep a file himself.

So much for immigration reform. They've designed the system to be gamed. Not to mention the $1000 fine per laborer is chickenshit. Hell, a fine that low makes it worth it to just ignore the law entirely. Cost of doing business.

[Phx_Dem]

16. the employer cannot accept photocopies n/t

[Phx_Dem]

17. Also, there are huge #s of fake DLs

out there. Recently a house here in Phoenix was raided, the police found 50,000+ BLANK AZ DLs. Someone from the DMV was selling them, so when these DLs are provided to the employer, they look real because they are real, just not really ;)

[Cleita]

21. You know it's easy enough to pick up the phone and

check with the DMV. Here in California they are cooperative and will check their records to say yes or no, it's a valid license. It's not a valid license.

However, the documents allowed are too broad in range and easily faked or stolen ones can be made to look genuine. There is a legal way to get a real SS# too, which I won't mention here because I don't need it spread around the internet. In the case of a brown person, who speaks little English, the only document that should be acceptable is the work permit issued with their visa, or their green card. The issuing agencies should be available to verify that these documents are genuine.

I think hefty fines to the employer would be in order if they knowingly or unknowingly hired an undocumented worker. Of course this isn't really a workable solution in the real world because legal immigrants would be turned away from work from a skittish employer not wanting to be fined.

So the real solution as I said was strong labor laws that include everyone with a stiff fine to the employer for paying less that minimum wage or hiring under the table.

[sweetheart]

10. i can't believe you guys turn in to supply siders overnight.

Since when have progressive views sided with supply-side solutions?
They are inherently centrallist, unenforceable, and ultimately unworkable.
We have the example of the drugs war, where the street price is cheaper
than ever before, supplies as common as ever before. All after waging a
war of walls, checkpoints and employer-shutdown attempts... supply side
malarky... where there is demand, supply will fill... law of economic
physics.

So to nominate a supply-side solution (not to say that simply mentioning the
current law is to actually support its logic), we're already framed in their game.
They already own our mindset, and it is already failed from the beginning.

Like with drugs addiction, supply side is not where to apply the tonic,
but on the demand side. The cost of a wall would find some great public
works projects to put a lot of people to work, and its all about jobs and
people getting a living after all. The problem requires investment, trust
and longterm goodwill... to be cheap with neighbors is foolish, as the long
term result is a nasty unhappy neighbor, a permanent marriage of divorced
angry persons... uggllhh, why be ugly when we can be elegant.

We could get everyone a good job, and settle this whole mess right fast,
if "we" politically wanted to, the same "we" that made those laws.

You are the employer, i am, and the illegal picked your strawberries at
the supermarket, don't buy any fruit. You are the employer, i am, don't
keep a lawn that needs tending. You are the employer, i am, don't have
chilren that require the burdens of childcare. Until we sort out the
domestic failure of the neoliberal discounted household complexity, the
strawberry pickers, clothes washers, rug cleaners, taxi drivers, of
our underclass will provide chieap services to those who don't
hold with the ban on illegal-services....

As long as the US claims to represent "the good life", as it does for so
many, people will come to try their luck on the wheel. Why not give
them all a free spin, and along with them, give ourselves one too... the
system steals from "us", to fund a military murder machine... something
that by merely diminishing, funds a very generous esteem.

[Cleita]

11. You are right. My point is that those people who want to

build walls to keep immigrants out are barking up the wrong tree. They are blaming the victim. I posted the law and the loophole to show that the laws were written to back the employer not the victim and not the working class American. I didn't post the source that fines each immigrant $3,000 as contrary to $1,000 for the employer. We know whose side the law is in that legislation alone.

We need progressive labor laws to address this problem. All the people opposed to the immigrant workers say that they are opposed to them because they are driving down wages, don't pay taxes and stress social services. If wages are being driven down it's because the employers can hire cheaper labor with little or no consequence.

So if this is the problem they have to change the legislation to one that benefits the working class American. However, I have the feeling that if this were done, there would be that sector that would still complain about the immigrant workers and find something else to blame them for.

[Phx_Dem]

14. I have posted about the I-9

several times now but you know how it goes. This is the problem: When the I-9 is submitted to the SSA, the SS# is not run through the system to ensure that 1. the number is valid and 2. no one else is using the number.

The employers responsibility ends when we submit the I-9, the problem is with the SSA computer system, if all SS#s were checked undocumented workers would have a much more difficult time obtaining employment.

[Cleita]

23. Yes, I know. I used to be a payroll bookkeeper and I was

working when the law came out. I saw then how unworkable it was. In my post above I stated that in the case of immigrants the only documentation that should be accepted is the worker's permit issued with their visa, or their "green card" (which isn't green for those who don't know). Then these documents should be verified with the issuing agencies for authenticity.

[Phx_Dem]

26. That sounds like a good idea n/t

[sadiesworld]

18. Does this surprise you?

While every DUer may not be familiar with the actual legislation, I think most have assumed these types of loopholes when calling for employer sanctions with real teeth.

What makes you think people haven't been contacting their critters about this issue?

Oh well, thanks for the links.

[Cleita]

24. I don't think most people want the real issue.

I posted this on Saturday when all the flaming immigration threads were happening on DU, especially the blame the immigrant threads. Some horrible, horrible accusations were being made against immigrant workers. It sank like a rock. Look at the first threads the number of kicks I gave it. It's like no one really wanted to look at who the perpetrators of this issue really are.

[sadiesworld]

31. That's BS.

The vast majority of posts discussing remedies to the problem of illegal immigration have included calls for REAL sanctions against employers. You're really trying to tell me that DUers "don't get" that the desire for cheap labor is at the root of this issue? HA!

You haven't unearthed any heretofore unimaginable treasure about illegal immigration nor have you revealed any profound truth about DUers. Your post simply tells DUers something they know or have (correctly) assumed all along.

At the end of the day, you are simply playing a see-how-horrible-all-those-racist-DUers-are type of game.

[Cleita]

34. Hmm. No not the majority of DUers. n/t

[sadiesworld]

36. Then you shouldn't have any problem providing examples.

Start posting.

[Norquist Nemesis]

19. Except there are a lot of employers who hire as contractors

or Independent Contractors. By doing that, it absolves them from paying taxes (it's the contractor's sole responsiblity) and I-9s aren't required.

I'm sure there are a lot of details about it and I'm just not knowledgeable to speak on it, but there are people here at DU that are. But the Independent Contractor category insulates a lot of 'employers'.

[Phx_Dem]

20. true, but there are VERY specific

guidelines when people are hired freelance. For example, you cannot hire a person freelance if the work they are doing is the same as others on payroll. In general, a person qualifies for freelance status if the work they do is based on a bid or quote (not hourly or salary pay), they use all of there own equipment (like a laptop), and the skills required are specific to that task.

[sweetheart]

28. pay the baby sitter and the house keeper with crisp 20's

contractors indeed! Everyone's a contractor, and when i was a teenager,
i wouldn'ta taken a baby sitting job where they took taxes out, i'd
wriggle for "contractor" status.

[Cleita]

30. See my post #29. n/t

[underpants]

27. Just so we are fair-lots of people use this to get around taxes

it is a very common practice for contractors.

[Cleita]

29. The payor is supposed to file 1066 forms for all their independent

contract labor, just like your W-4 at the end of the year. It accounts for all the money paid out to labor during the year. If you hire a licensed contractor who has his own employees then you are off the hook. It's his responsibility to do this.

Now there is going to be the homeowner who hires either high school kids or immigrants to cut his grass and a lot of that money goes unaccounted for, but Americans are as guilty of this under the table economy as are the immigrants.