David Bier

Post image for Senate Immigration Bill Authorizes E-Verify as Surveillance Tracking

The Senate immigration bill (S. 744) is immense, so most Americans (and, more importantly, journalists) can be forgiven for missing the part that authorizes the Department of Homeland Security (DHS) to use the bill’s mandatory employment verification system (E-Verify) as a surveillance system for workers.

The Senate’s E-Verify proposal is electronic national ID, allowing employers to identify new employees using a biometric system containing photographs or substantial personal information (p. 531). To assuage fears that E-Verify would expand to other uses, the authors of the bill included a clause stating that the E-Verify section was not authorizing any agency to use the system “for any purpose other than for employment verification” (p. 594).

This misleading language was carefully written to allow other sections of the bill or even current statutes to authorize the use of E-Verify for other purposes. Five hundred pages later, the authors explicitly expand the identification system into a surveillance system. Tucked at the end of the section on guest work visas under “Requirement to Monitor,” it states, “the [DHS] Secretary shall monitor the movement of W [temporary] nonimmigrants in registered positions through… the Employment Verification System.” (p. 1105).

In other words, the system will already be used as tracking and surveillance, not simply for employment screening. E-Verify records the physical location of the employment check, meaning it can be used to track location as well as verify identity. The authors of the bill might argue that the bill only targets foreigners (similar to NSA surveillance), but since U.S. citizens also have to go through E-Verify, it’s not clear how DHS would screen out the time and location data of Americans—and nothing in the bill requires them to do so.

Given the fact that most Americans oppose the current secret expansion of the NSA surveillance state, where is the demand for even more domestic surveillance?

Raul LabradorRep. Raul Labrador (R-Idaho) has led the effort in the House to fix immigration laws in the most conservative and free market way possible. Labrador has not floundered in the immigration waters, stammering out apologies for his views or flipping to new ones. Rather, he has stuck to his one basic principle: Congress created this problem. It is time for them to fix it.

Unlike other immigration reformers in the GOP, there is no clear incentive for Labrador to stick his neck out on the issue. In the short-term at least, Labrador lacks the transparent national ambitions of Sen. Marco Rubio (R-Fla.) or Rep. Paul Ryan (R-Wisc.) and is still more likely to be defeated in a primary than in a general election by a Democrat backed by Hispanic voters.

Instead, Labrador, a former-immigration attorney, simply understands America’s immigration system in a much more detailed way than most legislators involved in the debate. He wants to fix the system not to pander or to make himself a national figure, but to rectify the real problems with the system, that both are in humane and hamper economic growth.

“Pandering to the Hispanic community,” he said in a recent interview, “is actually a recipe for disaster.” As an example of the depth of the congressman’s views, he recently targeted the administration’s executive overreach on immigration, but rather than going for the typical easy target, enforcement, he discussed how the administration has thwarted businessmen who want to bring migrant workers here legally.

Businesses “are saying that they are getting unprecedented numbers of questions being sent by the Department of Labor when they have to do a labor certification,” he said recently, “They are adding requirements that were not in the law before…. My concern is that this administration, even if we make a system that works, is going to make it through regulation much more difficult for businesses to actually utilize the program.”

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Post image for House National ID E-Verify Bill: 6 Dangerous Provisions it Includes (And 5 Worker Protections it Excludes)

The House of Representatives has passed out of committee a bill (H.R. 1772) to mandate E-Verify electronic employment verification for all employers. This bill differs from the E-Verify proposal in the Senate immigration bill, so here’s the breakdown of what it’s in it:

1) Huge fines for employers: The bill cranks up the civil and criminal penalties both for employers who hire “unauthorized” workers and those who fail paperwork or technical requirements, such as E-Verify checks within a 3 day window or correct form filing. For technical errors, the bill increases fines tenfold—increasing the minimum fine to $1,000 per mistake and up to $25,000 per mistake (p. 50). Given the fact that this law can already cost employers up to $1 million for systematic “technical deficiencies,” the new law could result in tens of million in fines for some businesses. At the same time, the bill creates prison sentences for those who refuse to use E-Verify of up to a decade—hard time for a nonviolent offense.

2) Punishments for those employers never even hired illegal immigrants: The House bill would create federal criminal and civil penalties for employers for failing to make E-Verify checks. As in South Carolina where E-Verify is mandatory for many employers, employers would be fined for, as the South Carolina government puts it, “failure to E-Verify a new hire,” not for actually hiring unauthorized immigrants (p. 15). Like the Senate, House Judiciary rejected a proposal made in the Senate by Sen. Jim Risch (R-Idaho) to exempt from penalties employers who never actually hired an unauthorized immigrant, but merely missed an E-Verify check.

3) Americans’ new jobs can be delayed until cleared by E-Verify: This bill also permits employers to make job offers “conditioned on final verification” (p. 20). This means for the 180,000 legal workers who would be initially not confirmed for a job each year (under DHS’s 2012 error rate) could have their jobs delayed weeks or months, losing wages as they attempt to sort out the error at DHS or the Social Security Administration. A four week delay would cost the average U.S. worker $3,200 in lost wages. Many U.S. workers in states that mandate E-Verify use already have their applications thrown in the trash after receiving an initial nonconfirmation—this bill authorizes such behavior.

4) Very aggressive rollout. This bill would mandate E-Verify be used by all U.S. employers within 2 years—this is twice as fast as the Senate immigration bill (S. 744). Such an aggressive rollout imperils U.S. employers because it gives DHS very little time to sort out unforeseeable (and foreseeable) problems that will surely rise. Moreover, it starts its rollout for employers with over 10,000 employees in less than 6 months (p. 21), giving almost no time for regulations to be written and reviewed by lawyers. This is one reason why the legal issues that will cause employers trouble is already causing attorneys to salivate.

5) New forms and technical requirements: House Judiciary Committee Republicans claim that it “repeals the I-9 system” and replaces it with a “completely electronic check.” It does no such thing. It continues the same type of paperwork requirement under the current system (p. 2) and paperwork retention requirement (p. 9). Employers must also record initial nonconfirmation, final nonconfirmation, and confirmation codes on the form correctly or face penalties. It does all this while at the same time increasing fines.

6) Ability for DHS to shut down your right to work if you attempt to work multiple jobs: The House bill would allow the DHS Secretary the authority to “block from use” any Social Security number it deems subject to “unusual multiple use.” This means if someone already held a job and applied for multiple new jobs, DHS could prevent you from working without trial or review “unless the individual using such number is able to establish, through secure and fair additional security procedures, that the individual is the legitimate holder of the number” (p. 58). “No Fly List” meet “No Work List.”

See: 5 Worker and Privacy Protections It Excludes

Post image for House National ID E-Verify Bill: 5 Worker Protections it Excludes (And 6 Dangerous Provisions it Includes)

The House of Representatives has passed out of committee a bill (H.R. 1772) to mandate E-Verify electronic employment verification for all employers. This bill differs from the E-Verify proposal in the Senate immigration bill, so here’s the breakdown of what the bill lacks:

1) No limitation on how the system can be used: The House bill opens the door for E-Verify’s national ID system to be used almost anywhere to demonstrate identity. Once the system is in place and every American is part of it, it will be very easy for a federal or state agency to determine to use the system as a form of identification to get into buildings, to apply for a home loan, to rent an apartment, to purchase a gun, or to access health care. As the system expands, E-Verify will create not just a digital profile on everyone, but a digital history of their movements and their life.

2) No limit on errors for legal workers: Sen. Al Franken (D-Minn.) and Sen. Mike Lee (R-Utah) teamed up on the Senate Judiciary committee to propose an amendment to the Senate immigration bill to make penalties under E-Verify not mandatory for small employers unless DHS kept the error rate low for small employers. Senate Democrats replaced it with a version that halved the penalties for small employers in any year in which DHS failed to keep the error rate for legal workers at or below its currently-reported rate. The House bill, on the other hand, has no requirement or incentives for DHS to keep the error rate low.

3) No requirement to notify Americans when E-Verify is used to identify them or grant them access to their case history: Unlike the Senate bill, the House bill does not obligate the government to tell individuals when their name has been checked by E-Verify, nor does it grant them access to their E-Verify case history, also unlike the Senate bill. The Senate provisions were designed to protect Americans from unauthorized use of the system—their conspicuous absence should worry Americans who care about their privacy.

4) No administrative appeals process for U.S. workers: Unlike the Senate bill, the House bill contains no opportunity to appeal a wrongful final nonconfirmation (FNC)—despite the fact that according to the federal government, nearly 6 percent of FNCs go to legal workers. In other words, the bill virtually guarantees that 37,000 legal workers will lose their jobs under this system.

5) No administrative remedies: The House bill only allows remedies for individuals who are “dismissed from a job” as a result of an E-Verify error (p. 40). Since employers can extend job offers conditional on final confirmation, this means that in all likelihood, many, if not most, workers will receive no compensation for delays in being hired due to initial nonconfirmations or even from being rejected due to erroneous final nonconfirmations.

See: 6 Dangerous Provisions It Includes

Post image for Gallup: Record Opposition to Closed Borders

A record number of Americans favor allowing more foreigners to enter and live in the United States each year. Nearly a quarter of Americans (23 percent) favor “increased immigration,” according to the most recent Gallup poll. As importantly, nearly two-thirds (66 percent) oppose decreasing immigration, also a record. Last year saw the lowest support for decreasing immigration at any point since Gallup began asking the question.

The trends show Americans are more willing than ever to engage with the world. To be clear, most Americans—as I’m sure many would readily admit—do not comprehend the absolute or relative scale of immigration. The poll mainly reflects the fact that Americans feel more welcoming to immigrants than ever. In fact, 72 percent of respondents thought of immigration as a “good thing for this country today,” which is 10 percent higher than in 2001.

Gallup has polled Americans on their views on immigration since the 1960s in which just 7 percent of Americans sought to increase immigration. Even in 1993, a full two-thirds of Americans wanted to decrease legal immigration with those favoring higher numbers still at 6 percent. But then, the world changed. Free trade united Mexico and the United States. Demand for high tech workers went through the roof. And most importantly, America witnessed a surge of arrivals through both legal and illegal channels.

Immigrants are often said to result in less economic freedom. Despite the fact that there is no evidence for that, immigrants seem to have changed Americans’ attitudes toward freedom in at least this one area. By definition, free markets must transcend borders, and happily, immigrants appear to be increasing Americans willingness to endorse that principle.

The Senate’s passage of its immigration reform bill is a meaningful victory for free markets. Free markets ought to extend beyond borders. As has been seen clearly by economists since Adam Smith, exchange in both goods, services, and ideas make the world a richer and freer place.

Legalization: The bill would legalize the statuses of roughly 11 million immigrants here illegally, so long as they arrived before last year and were not a felon. Protecting the rights of immigrants to live and work freely also protects Americans’ rights to associate, contract, and trade with those immigrants. A first principle of U.S. immigration policy is that it should not violate the rights of U.S. citizens.

Those who recommend that we “just enforce the law,” as it is currently written, rarely understand the implications of that suggestion for Americans. Not only would tens of thousands of business owners dependent on these immigrants be bankrupted due to labor shortages, not only would thousands of employers be subject to massive fines or imprisonment, but millions of U.S. citizens would also be imprisoned under current law—for “harboring” them or for “aiding” them through charity or other means. These statutes, which entail long prison sentences, would clearly cover U.S. citizen families and friends of immigrants here illegally.

Violating the rights of U.S. citizens to engage in commerce with these immigrants ultimately has negative economic effects.  For example, a team of economists led by Steven Zahniser and Thomas Hertz at the Economic Research Service estimated for the Department of Agriculture the effect of losing 5.8 million unauthorized immigrants. “In the long run,” they concluded, “overall gross national product accruing to the U.S.-born and to foreign-born, permanent residents would fall by about 1 percent, compared with the base forecast.”

In other words, removing these workers would be like losing $150 billion—and that’s just from losing half of everyone here illegally. Conversely, legalizing the statuses of these immigrants will result in huge economic gains. Legalization increases the productivity of immigrants by creating an incentive to gain new skills and learn English. In 2012, Berkeley econ professor Raúl Hinojosa-Ojeda found that GDP would likely rise by $1.5 trillion over ten years.

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Gay marriage“We received a cold, brief letter from the Immigration Service notifying us that our petition had been denied. Why? Because we’re both men.” That was Brandon Melchiorre, explaining late last year his failed-attempt to get a green card for his spouse, Luke. “The denial letter from Immigration Services clearly stated in an unapologetic, discriminatory tone that we are still, in fact, second-class citizens.”

Under the Defense of Marriage Act (DOMA), gay Americans cannot sponsor their partners to enter and reside in the United States. But thanks to the Supreme Court decision in U.S. v. Windsor yesterday, that fact will change. The case involved a New York woman, Thea Spyer, who was legally married to another woman, Edith Windsor. After Spyer died, Windsor sought an exemption from the Death Tax, which would have cost her $363,000.

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” Justice Anthony Kennedy wrote for the majority. “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

But for same-sex spouses attempting to marry foreigners, this case is all about freedom of association. “This is my home. This is where I work. This is where I employ 16 Americans. This is where I pay all of my taxes,” said Nathalie Gaultheir (pictured above), an Australian-born entrepreneur engaged to a U.S. citizen, last year. “I have an expiration date… I go to bed I have a new expiration date. I’m always a guest in this country.” She adds, “I just want to have my residency. I could just lie to the government and marry a man, but I don’t want to do that. I don’t want to lie. I want to be honest.”

Nathalie resides currently in the U.S. on an O-1A visa, which is for people with extraordinary abilities. But it’s not equality for her or her spouse. “I have to keep renewing it and proving myself every 24 months, and it takes 6 to 9 months to do so, which costs thousands and thousands of dollars,” she said. “When I was injured and I had to have surgery, I was locked out of the country for 5 or 6 weeks.”

She is lucky that she can stay in the United States at all. Many Americans choose to live overseas due to their inability to get a visa. “My partner is Brazilian and unable to get a visa to live in the U.S.,” wrote author Glenn Greenwald in 2009, “which means our only option for living together is to live in Brazil, as that country (like many civilized Western countries, but unlike the U.S.) issues permanent visas to the same-sex partners of their citizens.”

Conservatives can certainly celebrate that Ms. Windsor will avoid the Death Tax that they have fought so much for so many years, but for many U.S. citizens, the Supreme Court decision means that America has come much closer to protecting true freedom of association—and conservatives ought to celebrate that as well.

Post image for Border Security Doesn’t Require “Invading” the Border

When President Bush left office in January 2009, there were about 30,000 U.S. troops in Afghanistan. If the Senate immigration bill (S. 744) passes, this military-style mobilization will come to the U.S.-Mexico border — and then some.

Under the Hoeven-Corker border security amendment, approved Monday, the bill would now pour in at least 38,405 Border Patrol personnel along America’s Southern border — more than double the original amount. At the same time, it would increase total border security funding more than five-fold — from $8.3 billion to $46.3 billion.

These funds will go to finish a 700-mile border fence and add hundreds of new surveillance towers, thousands of camera systems, and tens of thousands of ground sensors — not to mention fiber-optic tank inspection scopes, thermal imaging systems, and “portable contraband detectors.” It will send 17 UH-1n helicopters, five Blackhawk helicopters, eight AS-350 light enforcement helicopters, and enough drones to log 130,000 hours of flight time each year.

This is not simple “border security” — personnel-wise, it’s a mobilization proportional to the one in Afghanistan (it’s already being called “the surge“). But unlike that adventure, it was not provoked by any foreign aggression. Instead, this offensive is a response to hundreds of thousands of peaceful people moving to the United States to work — such a reaction is without even the slightest rationale.

Not to be misunderstood, border “security” is a legitimate and necessary function of government—border “invasions” are not. Border security would require immigrants and travelers to enter within legal avenues through which they could be processed and checked. Security’s role is to protect and aid movement between countries, which allows free markets to extend beyond legal jurisdictions.

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Post image for E-Verify: A Boon for Lawyers, Bad for Employers

I have written extensively about the threats to Americans’ civil liberties from E-Verify, the employment verification system contained within the Senate’s comprehensive immigration reform (CIR) bill.[i] I have also written a study outlining the costs of E-Verify to the economy—at least $8.5 billion per year.[ii] But the problems from E-Verify go far beyond what can be estimated in a simple study. Regulatory complications will ultimately make the system much more costly than anyone can predict now.

The most recent evidence for this fact comes from a report by Immigration Daily (ILW.com), the largest immigration attorney website in the country. “The reaction of the large law firms is a little different than the conventional wisdom—apparently legalization is not where they see the opportunity,” its editors wrote this Friday. “The smart money is not on legalization as a source of business, it is instead on EVerify as a major source of business for the bar.”[iii]

The ILW lawyers cite the fact that many of the 250 largest law firms in the country, ranked by the National Law Journal (NLJ), are searching for new employment law attorneys. “The NLJ250 firms apparently prefer these employment-based practices to family-based practices since the primary opportunity they see in CIR is EVerify,” the Daily’s editors conclude. “Since vast quantities of employers will have to rush into EVerify… the firms seek to add meaningful capability (not just a lawyer or two) in-house to service their clients post-CIR EVerify needs.”

America’s lawyers recognize that E-Verify will be a boon for them—which means it will be complex and dangerous for businessmen. With penalties up to $25,000 per missed E-Verify check and five years in prison for intentionally hiring an unauthorized worker, this bill will send businesses scampering to their nearest immigration practice for compliance advice. The current USCIS user manual is already over 80 pages long, and that’s under the current simpler system.

E-Verify is the most extensive regulation imaginable, not just affecting every single business in the country, but every single worker as well. As we’ve seen in so many other areas of regulation, this level of intrusion will result in difficulties not yet imaginable to the authors of the bill. It’s not just hype: E-Verify is set to be a boondoggle, and America’s lawyers are preparing to “save us.”

[i] David Bier, “E-Verify National ID System Threatens Americans’ Privacy,” June 18, 2013. http://www.openmarket.org/2013/06/18/e-verify-national-id-system-threatens-americans-privacy/

David Bier, “What Are the National ID Implications of the Senate Immigration Bill?” May 3, 2013. http://www.openmarket.org/2013/05/03/what-are-the-national-id-implications-of-the-senate-immigration-bill/

[ii] David Bier, “E-Verify Mandate Is Costly for Businesses and Workers,” Competitive Enterprise Institute, April 22, 2013. http://cei.org/sites/default/files/David%20Bier%20-%20E-Verify%20Mandate%20Is%20Costly%20for%20Businesses%20and%20Workers.pdf

[iii] Immigration Daily, “Law Firms React to CIR,” June 21, 2013. http://discuss.ilw.com/content.php?2104-Jun-21-Law-Firms-React-To-CIR

Post image for E-Verify National ID System Threatens Americans’ Privacy

“I’m not a criminal, so there’s really no reason for me to be in a criminal database.” That was James Shepherd, a Kentucky native and a roofer, after he was stopped by police under “suspicion of trespassing” at a Florida hotel. The officer on the scene asked to take his picture and ran it through Florida’s facial recognition database. Finding no matches, he uploaded Shepherd’s photo with the label “suspicious person.”

Florida is one of 26 states that use facial recognition software to verify identities of individuals who possess state ID photos or have their photos added by police, according a new report by The Washington Post. The Post report exposes how quickly systems created for one purpose can be coopted for other purposes. This should make those who support, in order to stop illegal immigration, the E-Verify national ID system contained in the Senate immigration bill consider what other applications authorities could find for the System.

E-Verify violates “a key principle of privacy”

 The Senate immigration bill would create a centralized database with photos of every legal U.S. worker or potential worker. It does this by combining the Social Security database – names, addresses and Social Security Numbers – with passport and state ID photos (p. 1317). The bill incentivizes states to provide photos by offering hundreds of millions of dollars in exchange for making them accessible to the federal government (p. 1377).

This much alone violates what Robert Ellis Smith, publisher of Privacy Newsletter, calls a “key principle of privacy.” As Smith explains, “The principle is that information gathered for one purpose ought not be used for an incompatible purpose without consent of the individual.” In this instance, Americans never conceived their Social Security accounts or driver license photos would be used for immigration enforcement, violating the premise under which they handed them over.

Federal law actually recognizes this principle under the Driver’s Privacy Protection Act, which strictly limits how states can use photos compiled under the auspices of motor vehicle regulation (18 USC § 2721). But this bill explicitly states the DPA doesn’t apply in this case.

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