Arizona's illegal immigrants can easily avoid E-verify system
by Jahna Berry - Aug. 17, 2010 12:00 AM
The Arizona Republic
Companies have opportunities to make sure they aren't hiring illegal immigrants.
Prospective hires must show proper identification, and they must submit U.S. government-required paperwork. Under Arizona law, new hires must be vetted by E-Verify, a federal system designed to catch illegal-immigrant workers.
But there are many ways for unauthorized workers to slip through the cracks.
It's not hard, experts say, for an illegal immigrant with high-quality fake identification to collect a paycheck. An undocumented worker could remain on a company's payroll a few days or indefinitely, especially if he or she uses a matching name and Social Security number taken from a friend or relative, or stolen.
How can this happen?
Among the reasons: Most hiring staffers aren't fake-ID experts. The state's push to use E-Verify has had limited success. Identity theft isn't always detected immediately. Surprise federal audits can't reach every business.
Because the existing safeguards can't stop every illegal worker, the risk of getting caught is the greatest deterrent for workers or employers who may want to skirt the rules.
Intense anti-illegal-immigration politics in Arizona and increased scrutiny from law enforcement may have made applicants and companies less willing to take chances, some employment experts say.
Employers in middle
Arizona, home to as many as 460,000 undocumented immigrants, has become the center of a national debate about illegal immigration.
Much of the debate has focused on employment because most border-crossers come to the U.S. looking for jobs.
Many employers are now so worried about inviting attention from regulators that even law-abiding companies are unwilling to talk openly about their efforts to avoid hiring undocumented workers.
A firm with the best practices may inadvertently hire an illegal immigrant, and companies don't want to risk fines or other penalties, say attorneys who represent local employers.
"There is no way to completely, 100 percent, prevent workers who are not authorized to work in the United States from being on the payroll," said Christy Hubbard, attorney at Phoenix's Lewis & Roca LLP. "There's just not."
"The reason why," Hubbard added, "is that people have documents that make them look like they are authorized to work."
In April, Pro's Ranch Market fired 300 Phoenix workers after an audit by Immigration and Customs Enforcement found that they were working in the country illegally.
The supermarket followed the law in asking their new hires to verify their eligibility to work, but most of the 300 workers gave the company forged ID documents, the company said.
Employers face a legal tightrope in trying to avoid hiring illegal immigrants without violating workers' civil rights, said Julie Pace, an immigration attorney who has represented Pro's Ranch Market and other Arizona employers.
"There are all of these (anti-)discrimination rules that people don't realize" are out there, Pace added.
When an applicant lands a job offer, employers require their new employees to fill out paperwork that could weed out undocumented workers.
All new hires must complete an I-9 form, or Employment Eligibility Verification form, as required by the 1986 Immigration Reform and Control Act.
The form is filled out on the first day of work, and the employee must supply supporting documents - driver's license, Social Security card, passport or a combination of other documents - within three business days.
Employers only need to be reasonably sure the documents are authentic. Human-resource staffers may catch some fakes, but they are not trained document experts, said Ryan Adair, an attorney with the non-profit Mountain States Employers Council Inc. Employers don't have to buy special equipment to verify that documents aren't faked.
"You don't have to buy a black light, you don't have to fingerprint the person or anything like that," Adair said.
The Legal Arizona Workers Act, which took effect Jan. 1, 2008, aimed to help close some of those loopholes.
The state law requires that all Arizona employers use the federal government's E-Verify system to check new hires.
It takes seconds to check a new hire's immigration status on E-Verify, a secure electronic database that combines information from several federal agencies. If E-Verify cannot immediately verify that the new hire is eligible to work in the United States, the worker can choose to dispute that finding and has eight business days to appeal with federal officials.
The Arizona law also includes tough penalties for people who knowingly hire illegal workers, including the loss of their business license.
E-Verify does a good job detecting workers who use made-up Social Security numbers. But it has trouble flagging workers who use stolen documents. If the new worker provides a name and Social Security number that match, the system won't know that they don't actually belong to the applicant. Workers may use identities stolen from strangers or may provide a real name and number "borrowed" from a legal worker they know.
In addition, an Arizona Republic analysis of E-Verify figures found that about one-third of the state's estimated 100,000 employers have signed up for the E-Verify program. And the most recent federal hiring data suggests that many new Arizona hires aren't being checked by E-Verify.
Arizona employers made 732,455 E-Verify checks from Oct. 1, 2008, to Sept. 30, 2009. During that same period, Arizona companies made 1.3 million hires, according to U.S. Census figures.
Officials from U.S. Citizenship and Immigration Services say that it's impossible to tell how many Arizona firms are using E-Verify. Some firms have out-of-state human-resources or payroll departments, so their E-Verify check may be credited to another state. Other experts say that small businesses, which employ many Arizona workers, have been slow to use E-Verify.
After a new hire is on the payroll, it's usually another government agency that alerts a company that it might have an unauthorized worker, said Pace, the Phoenix immigration-law attorney.
Sometimes a police agency is investigating an identity-theft case. At other times, the Arizona Department of Economic Security or the Internal Revenue Service may come calling. Often victims learn that their identity was stolen after they are turned down for welfare benefits or the IRS questions them about extra income.
The Social Security Administration may send a "no match" letter to a company if payroll tax information reveals that names on its payroll don't match Social Security numbers. But it's common for legal workers to have names that don't exactly match their Social Security number. Most of the 17.8 million discrepancies in the agency's records pertain to legal workers, according to federal figures.
And employment lawyers say the Social Security Administration doesn't always send letters when it finds discrepancies. They also say that if someone without documents uses a real person's name and Social Security number, the agency would have trouble discerning that type of identity theft.
Despite the loopholes in the system, the intense scrutiny on employers and Arizona's anti-immigration climate has made it tougher for undocumented workers to stay on the books.
Maricopa County Sheriff Joe Arpaio has made nearly 40 worksite raids as part of employer-sanctions enforcement. Since the raids began, more than 400 employees have been arrested; 278 have faced identity-theft charges.
Also, Immigration and Customs Enforcement is conducting more surprise I-9 company audits.
Under the Obama administration, ICE has more funding for worksite audits, said Matthew Allen, the special agent who oversees the program in Arizona. Instead of having eight agents and one auditor working on Arizona cases, the agency now has four additional auditors, he said.
From Oct. 1, 2007, to Sept. 30, 2008, there were 15 Arizona worksite audits. From Oct. 1 to July 31, there were 59.
"I would say for the foreseeable future, Arizona employers should take it as a given that they are more likely than in the past to be subject to an ICE worksite enforcement audit," Allen said.
Audits can lead to civil penalties, from a warning for minor paperwork glitches to fines for more serious offenses. In its 2008 and 2009 fiscal years, ICE collected $205,000 in civil fines from audited businesses. Egregious acts, such as conspiring to hire illegal workers, can lead to criminal charges and time behind bars.
For example, a Sierra Vista drywall firm's office manager was sentenced to two months in prison in 2008 for knowingly hiring unauthorized workers. The firm's president, Ivan T. Hardt, is awaiting trial.
The increased scrutiny from regulators has prompted many companies to do periodic checks to ensure that that their workers' hiring paperwork is in order, attorneys say.
There are also signs that other laws that target illegal immigrants, such as the state's new immigration law, and the state's anti-illegal immigrant climate may have made working here less attractive for immigrants.
In July, U.S. District Court Judge Susan Bolton blocked key provisions of Arizona's new immigration law from taking effect, including one that compelled officers engaged in a lawful stop, detention or arrest to, when practicable, ask about a person's legal status when reasonable suspicion exists that the person is in the U.S. illegally.
Even though parts of the law are in flux, thousands of immigrants have fled recession-battered Arizona for other states.
Immigrant-rights activists say those leaving Arizona seek a less-hostile political atmosphere and what brought them to the United States in the first place - better job opportunities.
Reach the reporter at jahna.berry@arizonarepublic .com or 602-444-2473.