Nothing in this headline is a typo or an exaggeration. President Obama’s recently-leaked Comprehensive Immigration Reform Act of 2013 would require employers to employ unauthorized workers for weeks or even months. It requires these workers to be paid, even if they are proved definitely unauthorized by the government.
Section 301 of the president’s bill requires employers to use the Internet-based employment verification program known as E-Verify. Under the new law, after each new hire, employers would have to check employees’ identification, and if “a reasonable person would conclude that the documentation is genuine and relates to the individual presenting it,” they would have to check the individuals’ information against the E-Verify database within three days of the hire.
Subtotal: 3 business days
E-Verify “compares the name, date of birth, social security account number, and available citizenship information” against information held by the government. Because seemingly-genuine fake documents are readily available, many of individuals with documents would not be in the E-Verify system. The president’s bill requires the system to respond within three days and for employers to notify the unconfirmed employee within three days of that response of the non-confirmation.
Subtotal: 9 business days
But E-Verify is far from perfect. At current rates, approximately 150,000 legal workers would receive erroneous non-confirmations, so every individual is given the opportunity to correct their records at Social Security Administration offices. The employee has three weeks, or fifteen business days, to contest the initial finding, and after that, the System will automatically issue the employer a new confirmation or non-confirmation within ten business days to either confirm or reject the employee, which the employer must inform the employee of within three days.
Subtotal: 37 business days
At this point, if an unauthorized individual was hired and just went through the basic appeals process, he has the prospect of more than seven weeks of employment. At this point, the employee could easily be onto the next farm, using a new name and number to run the scam again. But because some portion of even those who attempt to fix their records will, due to government error or negligence, will again not be confirmed, so if the unauthorized worker wants to stay on longer, he can file an administrative appeal within ten business days of receiving his non-confirmation from his employer, and is given fifteen calendar days to submit evidence of his eligibility to work.
Subtotal: 58 business days
At this point, the administration has 30 calendar days to resolve the appeal. The administration could reject the appeal quickly if he deems it “filed for purposes of delay,” but it’s hard to imagine any administration doing this until after it has received all the evidence and has considered it fully. But even if it rejects the appeal immediately, then the employee has the ability within 45 days to appeal to an administrative law judge (since the government cannot potentially deprive you of your rights without due process). After the judge makes his decision, you may appeal within 45 days to the U.S. Court of Appeals.
Subtotal: About 140 business days
In another words, employers could potentially be forced to hire unauthorized workers for as much as 28 weeks—or described another way, this law could allow employers and employees to maintain semi-legal work for more than a half a year. For law-abiding employers, it would be a potentially major burden to hire, train, and pay these workers that they would later (at an uncertain date) be required to fire.
This process is absurd—if an appeal takes longer than two weeks, then the process should revert to the current I-9 form system, which allows employers to make a document judgment and hire an individual. Employers should not be forced to hire unauthorized workers for some indefinitely long period, where they do not know when they will have employees next.