Following the raid by U.S. Immigration and Customs Enforcement (ICE) last week at an electronics plant in Mississippi that identified almost 600 illegal aliens working in the facility, The Washington Post ran a story Thursday about the alleged “Catch-22” employers find themselves in regarding the new E-Verify employment eligibility program. Companies are complaining that even if they enroll in E-Verify, under which new hires have their Social Security numbers verified, they still remain at risk for enforcement actions by ICE – this is what happened to Howard Industries.  And, it is argued, if they fail to enroll, that may lead ICE to target them for enforcement action.

I haven’t seen any proof that ICE is either targeting companies who use or do not use E-Verify, but the simple fact is that there is no shortage of business targets for ICE.  The harsh truth is that upwards of 10% of workers in most industries described as low-skill – roofing, landscaping, hospitality, etc – are illegal.  ICE’s only problem is having some proof that a particular employer knows that their workforce falls into this situation.

The ironic thing is that both the business community and DHS have asked Congress to pass legislation that would not only make employment verification a routine part of running a business, but also grant legal status to most of the people who are targeted by these types of ICE raids.   When Congress failed to pass any major immigration legislation last year, both sides had to retreat to their familiar corners.   Business has argued that they need these workers to fill labor-intensive jobs, and they are faced increasingly with a system, E-Verify, that will smoke them out before Congress is able to provide legal status to these employees.  While business groups have legitimate concerns about the reliability and accuracy of E-Verify, they have not asked Congress to fund the types of IT investments that would create a system to drop the error rate.

Meanwhile, DHS ramped up raids and regulatory efforts to expand E-Verify to put employers and employees on notice of possible illegal employees, saying it has no choice but to enforce the laws as written – even if those tactics mean individuals and companies who would have benefited from the DHS-backed immigration bill are punished.

At the same time, for many decades, society has allowed states to issue identification documents which were easily forged or obtained by illegal aliens.  Of course, it is these very documents which are the core of the current system employers use to check an employee’s status.  While many states have improved issuance systems since 9/11, the uproar over state rights has delayed implementation of more rigorous driver’s license standards (but not a national ID, as critics claim) under the REAL ID law.

Employers cannot be expected to be forensic document experts analyzing the thousands of documents in circulation, so we shouldn’t be surprised if illegal aliens use lenient state laws to get or forge identification cards or steal someone’s identify.  While checking the Social Security number under E-verify will identify some imposters or thieves, more needs to be done.  States must meet their REAL ID obligations and tighten up laws around identity theft and false documents in order to help combat illegal immigration.  Congress should provide healthy funding to states to do so.  Additionally, Congress should fund mechanisms for employers to quickly and accurately compare pictures of visa and driver license applicants to potential employees to determine their status in a timely manner.  And we as a nation need to look at proven technologies that can address these issues by piloting the use of biometric identification for sensitive workplaces or industries with high rates of illegal employment.

Employers are indeed caught in two Catch-22’s but not the one described in the article.  First, federal and state governments need to ensure that an employer who wants to play by the rules can actually distinguish between legitimate employees and legitimate documents before offering someone a job.  Right now, they cannot, and that’s the real dilemma.  Second, while employers can see legislative relief around the corner in the next Congress, ICE may arrive first.

It looks like there will not be a legislative resolution for these issues this year, but the next President and next DHS Secretary will have no choice.  Technology is forcing the country to recognize the reality of illegal employment, and E-Verify is just one part of that new reality.