In a series of posts, beginning on August 13, 2019, I wrote about a worksite enforcement operation in which U.S. Immigration and Customs Enforcement (ICE) executed criminal search warrants at seven agricultural processing plants in Mississippi. ICE apprehended some 680 removable aliens during that operation. An August 26, 2019, Los Angeles Times article noted: "The operation exposed the poultry industry's widespread use of unauthorized workers despite the federal system known as E-Verify, which was unveiled more than a decade ago to ensure potential hires could work legally in the United States." The criminal activity in which those workers and (possibly) employers engaged to evade E-Verify shows the system works, contrary to the point of that article. And, with enough enforcement, it could work even better.
My colleague Dan Cadman defended E-Verify against similar arguments in an August 20, 2019, post. He asserted that fraudulent attempts to evade the system were not a reason to scrap it. As he correctly pointed out:
The United States, by virtue of its openness and its robust market economy, is a nation awash in a sea of fraud. There's mortgage loan fraud, student loan fraud, Social Security fraud, Medicare fraud, bank fraud, ad infinitum. You name it, fraud will be there, and that's true no matter what safeguards are put into place. For every security regimen one human crafts, there will be another human seeking to cheat it or defeat it. Does that mean we should scrap such systems? Put that way, it sounds foolish, doesn't it?
Yes, it does sound foolish. Curiously, I have heard removal cases involving each of those kinds of fraud, as well as Small Business Administration fraud, Medicaid fraud, the "Spanish prisoner" fraud, and a subset of the Spanish prisoner called the "black money scam" (look it up, people fall for it). For convenience, the FBI even has a list of 23 "Common Fraud Schemes".
With respect to E-Verify, as the Department of Homeland Security (DHS) explains:
E-Verify is a web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States. E-Verify employers verify the identity and employment eligibility of newly hired employees by electronically matching information provided by employees on the Form I-9, Employment Eligibility Verification, against records available to the Social Security Administration (SSA) and [DHS].
The Los Angeles Times contends, however, that "the system has not lived up to its promise," noting "a 2012 audit commissioned by U.S. Citizenship and Immigration Services found that people in the country illegally routinely evaded it."
First, I would point out that relying on seven-year-old audits may not be the best evidence you can offer to prove a point, particularly given the annual enhancements to the system since that audit was completed.
That said, let's take the statement at face value, and compare it to an enforcement regime with which we are all familiar. Most of us drive the highways of America, which have varying speed limits. We regularly see police stopping vehicles on the side of the road, usually because they have caught a speeder, but people still speed. By the Times' logic, speed enforcement "has not lived up to its promise", but would anyone argue that we should not have either speed limits or highway law enforcement? That goes back to Cadman's point: To ask the question is to answer it.
Part of the reason why people speed despite posted limits and known enforcement is because the penalties are (comparatively) low, and enforcement sporadic. As a former prosecutor and judge, I can assure you that if the penalty is high enough, and/or enforcement more reliable, people will conform their behavior to the constraints of the law. Imagine that you risked a $1,000 ticket for going 10 miles over the speed limit — even absent greater enforcement, the number of speeders would drop. That is why handicapped parking spaces list the potential fine (generally pretty high) an offender risks for a violation.
Or imagine that people see enforcement of the law. When a state trooper has pulled someone over on the side of the road, check to see how many brake lights you notice. Is the trooper going to leave the vehicle he or she has already stopped, hop in the patrol car, and chase after you or another offender? No, but other drivers see the enforcement, fear the enforcement, and comply with the law.
With that in mind, let's consider E-Verify, the immigration worksite-enforcement regime, and the possible legal ramifications that those who seek to subvert the employment-verification provisions face.
The Times explains pretty succinctly how people evade E-Verify:
Some workers without legal status borrow the identities of friends. Others pay for the stolen identification of unknowing or dead citizens. Meanwhile, some companies use E-Verify improperly, and unscrupulous ones can accept shady documents while maintaining that they use the system.
That sounds about right, except the Times assumes that friends simply lend their identities to others — an altruism that often does not play out all the time in the real world. Kindness makes the world sweeter, but money makes the world go around.
That said, whether it is the worker or the employer or both who skirts the law, there is a significant amount of criminal exposure for all those involved. Strict enforcement of the laws that either or both violate, particularly in high-profile cases, will likely stem attempts to subvert E-Verify.
Of course, if an unauthorized alien gets caught working illegally, the alien will usually be arrested and often get removed. That is why the Times' article is accompanied by photos of individuals in handcuffs and at least one onlooker daubing her eyes. As an aside: It is curious that you rarely see the family members and friends of other arrestees in such distress, but this is likely editorial license revealing the paper's viewpoint about the seriousness of violations of the immigration laws. I can assure you that similar scenes are played out on a daily basis when a loved one is taken away by police, regardless of the law that is broken, from food stamp fraud to murder.
I have already discussed in a prior post the civil and criminal immigration penalties that employers face when they are found to have violated the employer-sanctions laws. There are civil penalties under section 274A(e)(4) of the Immigration and Nationality Act (INA) for "knowing hire" violations of up to $2,000 per worker for a first offense, penalties that jump up to $10,000 for an employer that has been caught more than twice. That is real money, regardless of the industry.
An employer who "engages in a pattern or practice of" knowing hires can face an additional criminal fine of $3,000 per unauthorized alien and six months' imprisonment under section 274A(f) of the INA. And there are additional criminal penalties in section 274(a)(1)(A)(iii) of the INA for harboring an illegal alien. If that offense is committed "for the purpose of commercial advantage or private financial gain", those penalties include a fine and imprisonment for up to 10 years under section 274(a)(1)(B)(i) of the INA.
Those are just the offenses and punishments in the INA. Next, there are violations of 18 U.S.C. § 1001(a). That provision makes it a crime, subject to a fine and imprisonment for up to five years, to falsify by scheme a material fact; to "make[] any materially false, fictitious, or fraudulent statement or representation"; or "make[] or use[] any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry" in a matter in the jurisdiction of the federal government. Those provisions would apply to the fraudulent completion by an employee of Section 1 of the Employment Eligibility Verification Form (Form I-9), and to the fraudulent completion by an employer of Section 2 of that form. Note in particular that each is attested to "under penalty of perjury". That should concentrate one's attention.
Speaking of perjury, it is punishable under 18 U.S.C. § 1621, subject to a fine and/or imprisonment for up to five years. Subsection 1621(2) specifically would apply to a false statement (not under oath) attested to in either Sections 1 or 2 of the Form I-9.
In addition, there is 18 U.S.C. § 1028. Paragraph 1028(a)(4) makes it a crime punishable by a fine and/or imprisonment of up one year to "knowingly possesses an identification document (other than one issued lawfully for the use of the possessor), authentication feature, or a false identification document, with the intent such document or feature be used to defraud the United States." Again, possession of a fraudulent identification document for employment purposes would appear to be punishable under this provision.
Paragraph 1028(a)(7) criminalizes the "knowing[] transfer[], possess[ion], or use[], without lawful authority, [of] a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law." Again, the penalty for that offense is a fine and/or imprisonment for up to a year. Interestingly, a SSN or an Alien Registration number (A-number) constitutes a "means of identification" for purposes of this provision under subparagraph 1028(d)(7)(A). This means that the illicit vendor of a validly issued SSN or A-number, or an unauthorized employee who presents such a document as valid for employment purposes, could be subject to prosecution under this provision.
Producers and vendors of false identity documents (including Social Security cards, driver's licenses, and birth certificates) to be used to defraud the United States can be punished under paragraphs 1028(a)(1) and (2), with a punishment of a fine and imprisonment up to five years (or 15 years, depending on the circumstances of the offense).
Then, there is 18 U.S.C. § 1546. Subsection (a) of that provision makes it a crime, subject to a fine and/or up to 10 years in jail, to:
[U]tter, use[], attempt[] to use, possess[], obtain[], accept[], or receive[] any ... visa, permit, ... alien registration receipt card, or other document prescribed by statute or regulation for ... employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or ... to have been otherwise procured by fraud or unlawfully obtained.
As Black's Law Dictionary explains: "To utter and publish an instrument is to declare or assert, directly or indirectly, by words or actions, that it is good."
This provision presents potential liability to both the employee (who presents a forged, counterfeited, altered, or falsely made document to establish employment eligibility for purposes of Section 2 of the Form I-9) as well as the employer (who knowingly accepts and receives such documents in completing Section 2 of the Form I-9).
Subsection (b) of section 1546 is even more specific:
Whoever uses—
(1) an identification document, knowing (or having reason to know) that the document was not issued lawfully for the use of the possessor,
(2) an identification document knowing (or having reason to know) that the document is false, or
(3) a false attestation,
for the purpose of satisfying a requirement of section 274A(b) of the [INA], shall be fined under this title, imprisoned not more than 5 years, or both.
The referenced provision, section 274(b) of the INA, is the Employment Verification System.
Of course, there is Social Security fraud, under 42 U.S.C. § 408. Paragraph 408(a)(7) of that provision makes it a felony, subject to up to five years' imprisonment and/or a fine, for anyone to falsely use a Social Security number (SSN) assigned to another with the intent to deceive for any purpose, or to buy or sell a real or fake Social Security card, or to possess a real or fake Social Security card with the intent to sell it. The first provision would apply to an unauthorized worker presenting such a number for employment verification purposes, the second to any unauthorized worker who purchases such a card or a vendor who sells one, and the third to an illicit vendor.
In addition, subparagraph 408(a)(8) of that provision makes it a crime subject to the same penalties to use a valid SSN of another in violation of the laws of the United States. Again, that would penalize an unauthorized worker who utilizes a real SSN, not his or her own, for purposes of completing section 1 of the Form I-9.
Then there is tax fraud. As USA.gov states:
Tax-related identity theft occurs when someone uses your Social Security number to get a tax refund or a job. You may not be aware of the problem until you E-file your tax return and find out that another return has already been filed using your Social Security number. If the IRS suspects tax ID theft, they will send a 5071C letter to the address on the federal tax return.
Well, let's hope they do, but there are still significant vulnerabilities in the system. For example, in June 2017, the Treasury Inspector General for Tax Administration (TIGTA) issued an audit report in which it stated:
TIGTA identified that IRS processes are not sufficient to identify all employment identity theft victims. For example, 497,248 victims, who did not have a tax account in Processing Year 2015, were not identified even though identity thieves electronically filed tax returns with evidence that they used the victims' Social Security Numbers (SSN) to gain employment. For another 60,823 victims, who have a tax account, the IRS did not update their account with an employment identity theft marker.
In addition, IRS processes do not identify employment identity theft when processing paper tax returns. TIGTA reviewed a statistically valid sample of 292 paper tax returns filed in Processing Year 2015 by individuals with an [Individual Taxpayer Identification number (ITIN)]. These tax return filers reported wages on 150 (51.4 percent) of the returns and attached a Form W-2, Wage and Income Statement, indicating they used someone's SSN to gain employment. As a result, TIGTA projects that the IRS did not identify 272,416 victims of employment identity theft for the 685,737 paper tax returns filed by ITIN holders reporting wages in Processing Year 2015.
TIGTA also identified that the IRS does not have processes to identify employment identity theft in the IRS's Form W-2 perfection processes or to notify the Social Security Administration of the crime when both the victim's name and SSN are used by an ITIN holder.
As TIGTA explained, the ITIN was created by the IRS in calendar year 1996 "to provide Taxpayer Identification Numbers, when needed for tax purposes, to individuals who do not have and are not eligible to obtain an SSN," that is, aliens who are not authorized for employment in the United States. Significantly, TIGTA found that "each year, the IRS receives an average of 2.4 million Form 1040 tax returns filed using an ITIN with reported wages."
In a follow-up report in February 2018, TIGTA indicated that IRS had agreed to develop a process to identify ITIN/SSN mismatches on paper-filed returns for the 2018 filing season. It stated: "This programming will systemically identify SSN mismatches on paper returns filed with an ITIN and forward those returns for special handling that will add the SSN data to the return record and permit markers to be applied on eligible accounts."
Individuals who use the SSN of another for employment purposes can likely be prosecuted under the tax laws. In particular, 26 U.S.C. § 7206(1), makes it a felony subject to a fine of not more than $100,000 and/or imprisonment for up to three years, for any person to: "Willfully make[] and subscribe[] any ... statement[] or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter" for tax purposes. The Form W-4, Employee's Withholding Allowance Certificate, is completed by a new hire for the employer for withholding purposes, as the Internal Revenue Service (IRS) explains. The W-4 is signed under penalty of perjury, and requires the new employee to provide a SSN. Again, the use of a fraudulent SSN by an unauthorized worker would subject that worker to this penalty, assuming that the employer complies with the law and requires the employee to complete the W-4.
There is also, in addition to the foregoing provisions, a separate conspiracy offense under federal law, which can be found at 18 U.S.C. § 371. That provision states:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
Under 18 U.S.C. § 3559(a), a "misdemeanor" is any offense for which the maximum penalty is five days to one year. Any offense five days or less is an infraction, and any offense greater than one year is a felony. If the employee conspires with the employer in any way to violate any of the offenses above, both can be prosecuted under this provision.
And then, there is identity theft, which is covered by any number of state criminal laws. In its press release on the Mississippi operation, ICE Homeland Security Investigations (HSI) noted: "Unauthorized workers often use stolen identities of legal U.S. workers, which can profoundly damage for years the identity-theft victim's credit, medical records and other aspects of their everyday life."
As my colleague Ronald Mortensen stated more than 10 years ago:
Newborn infants and children often are the victims of illegal alien identity thieves. IRS agents, law enforcement officials, people with disabilities, the unemployed, and even those serving time in jail have been victimized by illegal aliens using their SSNs in order to obtain jobs and other benefits. According to the Wall Street Journal, American citizens with Hispanic surnames are 1.5 times more likely to be victims of job-related identity theft than are other Americans.
Not much has changed in the intervening years. As USA.gov states:
Children and seniors are both vulnerable to ID theft. Child ID theft may go undetected for many years. Victims may not know until they're adults, applying for their own loans. Seniors are vulnerable because they share their personal information often with doctors and caregivers. The number of people and offices that access their information put them at risk.
Almost any prosecutor would, logically, be interested in stemming such identity theft. When the subject is immigration, however, logic goes out the window. That said, those state laws would provide an opportunity for a willing prosecutor to charge criminally aliens who have engaged in identity theft for employment-verification purposes.
Returning, however, to federal prosecutions. United States Attorney's Offices are famous (or notorious, depending on which side of the law you are on) for loading up indictments and complaints with as many charges for as many criminal offenses as possible. I have listed a number above; however, I can almost guarantee that there are any number that I have missed.
The U.S. Attorney's Offices with jurisdiction over the venues in which such worksite-enforcement operations have occurred should enforce the law vigorously (as appropriate and supported by the evidence), against any employee, employer, vendor, or anyone else who was violated these or any other laws for employment-verification purposes. And they should seek the maximum punishment possible for each of those offenses. The resulting convictions should be broadcast far and wide.
Despite what self-described "experts" may tell you, E-Verify is an effective tool to turn off the "jobs magnet" that encourages aliens to enter the United States illegally, or to enter legally and overstay, for purposes of finding employment. Any system can be subverted, but employers and employees are rational actors. If they know the punishment they could face is sure and severe enough (and as the foregoing shows, the punishments for violations of the listed offenses are pretty severe), they will not attempt to engage in the fraud necessary to subvert E-Verify. A loss of a significant amount of money, and one's freedom for years, simply would not be worth the risk.