September 2006 - Immigration Issues To Place Onus On Contractors
By Scott Smith

Though it is considered by many a dirty word, a sort of amnesty program for falsely documented aliens may be the only economically feasible way to deal with the situation, immigration attorney Jon Eric Garde told members of the Framing Contractors Association at their quarterly membership luncheon at Texas Station.

“No one wants to pay $8 for a head of lettuce or $2,000 a month for the Teamsters to come and clean our offices,” Garde said. “Not to mention the $40 billion over five years it would cost to deport all the undocumented workers or the Welfare costs to sustain the suddenly husbandless wives and fatherless children in the U.S. legally who would then find themselves with no breadwinner in the house.”

Garde noted that the vast majority of undocumented workers are hardworking employees who came into the country simply seeking to support their families.

“You and I would have done the same thing given similar circumstances,” he said.

While he supports an amnesty program, Garde does acknowledge that America’s porous southern border is a security risk.

“But for those already here, it is too expensive and frankly unfair to deport them,” he contends.

Garde discussed proposed changes to legislation that places a greater onus on contractors and other employers to verify the legal working status of their employees, and urged those in attendance to write their congressmen concerning any obligations they consider unfair. He noted that under the new rules, employers could be liable for employing illegal aliens even if they have no actual knowledge that the worker’s documentation is invalid. The new burden would be “constructive knowledge.” Employers who the government determines should know or perceive inconsistencies in documentation or are dilatory in responding to “no match” letters could face government action.

Ironically, currently employers are bound by non-discrimination laws that forbid them from specifying what type of documentation they want to verify employability. As long as the employee provides documentation acceptable by the Department of Homeland Security’s Employee Eligibility Verification form, the employee must accept it.

“If it looks good, you have to take it,” Garde explained. “The government knows contractors aren’t experts in detecting fraudulent documents or forensics. I’ve known contractors who’ve had the bejeebers sued out of them for second guessing documents that turned out to be legitimate.”

Garde discussed these possible abuses of Fourth Amendment rights, noting law enforcement must be able to articulate suspicions that a worker is undocumented. Complexion, accent, language and surname are do not constitute probable cause.

In short, “Mariachi music down by the taco wagon is not enough, says the [U.S.] Ninth Circuit [Court],” he said. “Part of the I-9 process is to protect vulnerable populations against unreasonable search and seizure.”

Along the same lines, current law prohibits employers to ask probing questions of some potential employers (read those who appear Hispanic) and not others.

Garde and the American Immigration Lawyers Association agree that Social Security numbers are not the proper tool for enforcing legal working status at the worksite because non-matching cards can be the result of clerical errors, employee name changes due to marriage and other causes and do not necessarily mean the worker is falsely documented.

The proposals, according to Garde and the AILA will result in severe administrative costs to the private sector, does not allow a “good faith effort” as a defense against unknowingly hiring an illegal alien and opens the door to abuse of legal citizens as diligent employers become more rabid in their attempts to determine employability.