Immigration reform should invest in labor standards enforcement and electronic employment verification—not more border security

The Pew Hispanic Center estimates that 45 percent of unauthorized immigrants crossed the border legally, but overstayed their temporary work or tourist visas, which means that almost half of unauthorized migration won’t be impacted at all by more Border Patrol agents, surveillance drones, or additional miles of border fencing. That’s why the additional funding proposed for border enforcement in the immigration proposals put forth by President Obama and the “Gang of Eight” Senators is misguided. Instead, some of those funds would be better spent by first, legalizing and fully integrating unauthorized immigrants into the fabric of American society, and then by investing in the creation of a functioning electronic employment verification mechanism. New funds should be devoted to increasing the level of labor standards enforcement by the agencies of the U.S. Labor Department. This is the only way to prevent future unauthorized migration.

It is encouraging that both immigration proposals offer a pathway to citizenship for unauthorized immigrants. Legalization will ensure that five percent of the labor force is no longer exploitable and that unauthorized workers do not degrade the wages and working conditions of U.S. workers. But the proposals ignore the reality that according to almost every conceivable metric, the southern border is more secure than it has ever been, and cities near the southern border are some of the safest in the country. Last year, $18 billion in taxpayer dollars was spent on securing the border—perhaps it was worth it, based on these results—but we might have reached the point of diminishing returns.

Compare this to the $1.6 billion that was spent in 2012 on enforcing labor laws and regulations, to protect 135 million workers, despite rampant wage theft of low-wage workers and alarmingly high levels of work-related injuries, illness, and deaths. Employer subcontracting to avoid accountability and employees being misclassified as independent contractors are also widespread problems in the workplace; they are tactics businesses use to exploit workers and escape liability when they circumvent labor and immigration laws, and to avoid paying payroll taxes and worker’s compensation insurance premiums. If a new comprehensive immigration law does not invest heavily in enforcing labor standards and tackling these problems, they are likely to continue. 

The president’s fact sheet outlining his principles for immigration reform boldly included a section titled “Protections for all workers,” which seeks to protect “workers against retaliation for exercising their labor rights” and increase “the penalties for employers who hire undocumented workers,” while also creating a new “labor law enforcement fund.”

The inclusion of this language in the president’s principles is a big step forward in the right direction. If a new immigration reform law protects the right of immigrants and guest workers to organize and speak up about problems in the workplace without fear of employer retaliation or threats of deportation, it will be a significant accomplishment that will positively impact the lives of all workers. Proposed legislative language to accomplish this already exists; it’s called the POWER Act. A “labor law enforcement fund” is also good start—if it can accumulate an adequate amount of funding.

As the unauthorized immigrant population is legalized and new worker protections are put in place, an effective electronic employment verification system must be implemented across the country in order to deter future unauthorized migration. Both the president and the Gang of Eight account for this, but the final, implemented version of the system must be accurate and secure, and the law must require employers to provide job applicants with adequate time and due process to resolve any inaccuracies in the system. The government’s current electronic employment verification system, E-Verify, is still far from adequate in this respect and should not be expanded until necessary investments and improvements are made—but they should be made quickly. A system that uses a personal identification number (PIN) with a biometric identifier instead of a Social Security Number, like the one proposed by Marc Rosenblum and discussed by former Labor Secretary Ray Marshall in Immigration for Shared Prosperity, could alleviate many of the concerns that worker and civil rights advocates justifiably point out. Here’s how it would work:

  1. All newly authorized immigrants, new workers, and job changers enroll in a new database and are awarded PIN numbers and secure personal identifiers.
  2. Before accepting a new or first-time job, enrolled workers would use their PIN numbers to receive a verification code from the local DHS or other appropriate authority to be used only for this purpose.
  3. Employees present this verification code and personal identifiers to the employer, who verifies the information by telephone or other electronic means and receives a confirmation number to place in the employees’ records.

This PIN-based system would better protect workers and job applicants and provide them more control over their sensitive personal information and worker verification data. It would also better prevent identity fraud, and by removing employers’ partial control over the process, keep employers from exploiting the system, which the present E-Verify system allows. To deter employers who would cheat the system by paying workers off the books, penalties for violators must be much stiffer than under current law, and a beefed-up Wage and Hour Division at DOL should be tasked with conducting a large number of random employer investigations and audits every year.

These solutions will require significant investments—but they are the only way to ensure that immigration reform succeeds—and that it is truly “comprehensive” in a way that prevents future unauthorized migration and protects American and immigrant workers.