A Reminder of Why We Do What We Do
It’s easy to fall into a mode of merely complying with the details of the regulations that shape the slices of the world we inhabit, but a look at how the I-9 culture evolved can remind us that it isn’t just busy work the government imposes upon us. Government is by habit and nature reactive, so the current version of the Employment Eligibility Verification form (I-9) is the latest iteration resulting from a series of events leading up to a form that serves an interest. Understanding its history can be instructive in showing us that collection and maintenance of this data is an expression of modern societal values, regardless of whether they are right or wrong.
A Little History On The I-9 Form
The founding fathers of the United States promoted a policy of open immigration, inviting all to our shores to seek their fortunes. The restrictions in those early days were placed on naturalization—you could come here to work, but you couldn’t vote or hold office unless you became a citizen. This was the general attitude until after the Civil War, and today, an enduring legacy of that policy is the Constitution’s requirement that a president must be born in the U.S.
In 1921, Congress developed the National Origins Formula which used the numbers of foreign-born residents from the 1910 census to establish proportional quotas by country for future immigration. The reference census shifted over the years to support the values of the day, but immigration was essentially frozen during the Depression. The Immigration and Nationality Act of 1952 mainly changed the quotas yet again, but the 1965 amendments to that law abolished the national origins system altogether and focused priorities instead on immigrants with skills our workforce needed.
1986 brought us to the foundation of current policy with the bipartisan passage of the Immigration Reform and Control Act which, for the first time, created penalties for knowingly hiring undocumented workers. The idea was to preserve the American tradition of legal immigration while putting a stop to the illegal variety. The fear of terrorism generated legislation in 1996 that would vastly increase the number of deportations for criminal activity, and then 9/11 happened, perpetrated by 20 foreign terrorists who had entered the country legally.
The attacks altered the thinking in a lot of areas, but Congress has yet to agree on a path to immigration reform. Instead, it created the Department of Homeland Security (DHS) to, in part, oversee immigration through three newly formed agencies: US Customs and Border Protection, Immigration and Customs Enforcement (ICE) and US Citizenship and Immigration Services (USCIS). USCIS is responsible for documenting alien employment authorization (the I-9) and running the E-Verify program, while ICE is responsible for enforcing I-9 compliance. Other divisions within DHS are meant to ensure that these provisions are not applied by businesses or the government in a discriminatory manner.
The introduction and reintroductions of the DREAM Act over time have, however, produced an unofficial consensus that undocumented immigrants who graduate from American high schools and attend college or join the military should be granted a path to citizenship. President Obama bolstered this value with executive orders effectively delaying the deportation of such people.
Immigrant visas are still limited, but immigrants generally become eligible for citizenship after five years of legal residence unless they were admitted through temporary work permit or student visa, neither of which provides a path to citizenship. Illegal immigration peaked at over one million in 2000 but is thought to have declined by half by 2009.
So Where Does that Leave Us?
Employment in the US is considered the magnet that draws illegal immigrants, so the theory is that they will not come if they cannot work. Employer sanctions are therefore designed to make cheaper labor less attractive than compliance. This paradigm forms the basis for the regulatory plan that resulted in the I-9. By making employers liable for hiring undocumented workers, fear of punishment for noncompliance is what prevents these workers from attaining the financial means to remain in this country, and, the government hopes, deters others from entering illegally.
The I-9 form requires the employer to scrutinize the prospective employee’s identity papers. Employers need to check for two things: (1) to verify that this person reasonably appears to be who he or she purports to be and (2) to confirm that he or she can document an immigration or citizenship status that permits eligibility to work in the United States. By requiring that employers do so within three days, the government is ensuring that employers do not let this step fall through the cracks. By requiring a signature, the government is encouraging employers to be thorough in their examination of the presented documents and honest in their assessment under threat of perjury charges. By requiring employers to retain a form containing unexpired documentation for each employee, the government is holding them accountable for ongoing verification that the employee remains eligible to work in the U.S. Employers are, therefore, on the frontlines of executing this policy.
Regardless of an employer’s position on the various issues that make up immigration policy, ICE’s surge in enforcement actions and promise to expand them even further is the reality. The current administration continues to commit unprecedented amounts of resources to enforce existing immigration and employment laws. This means that the government is watching employers closely and won’t hesitate to investigate for any reason. If ever there were a good time to reevaluate I-9 compliance procedures so a business can survive an audit unscathed, it is now.