WALL STREET JOURNAL

August 9, 2007

Proving Worker Status Poses Burden to Farms
 

By JUNE KRONHOLZ

WASHINGTON -- Employers warned of labor shortages, particularly in agriculture during the fall harvest, as the Bush administration appeared ready to implement new rules that would press employers to fire workers
who appear to be in the U.S. illegally.

"With no expectation there's a fall-back workforce, you'll put employers in the position of either firing workers or losing their crops," said Craig Regelbrugge of the American Nursery and Landscape Association, a
trade group.

The administration is under pressure from voters, and particularly Republican conservatives, to show it's tough on illegal immigration after an immigration bill supported by President Bush collapsed in the Senate in June. The administration's apparent intention to proceed with the regulations, a year after first proposing them, was reported earlier by the Los Angeles Times.

 The regulations will require employers to play a greater role in verifying that their workers are in the U.S. legally, potentially
putting new administrative burdens on industries, particularly agriculture, health care and construction, that typically hire large
numbers of immigrants.

In return for the increased records checks and a willingness to fire suspected illegal immigrants, the regulations offer employers "safe harbor" protections against prosecution for illegal hiring.

The Department of Homeland Security said it would implement the regulations "in the very near term," without saying when. But if that happens during the harvest season, trade groups predicted huge problems for growers who already face labor shortages. An estimated two-thirds of agriculture workers are thought to be in the U.S. illegally.

The department first proposed the regulations in June 2006 but then failed to implement them while an immigration-overhaul made its way to the Senate floor. That bill collapsed in part because of a public outcry over the administration's lax enforcement of immigration laws already on the books.

Currently, an employer reports a new worker's name and Social Security number with the Social Security Administration, and if the two don't match government records, the employer receives a so-called "no-match" letter. The department sends a similar letter if the worker's name doesn't match the identity document that the worker shows to prove he or she has the right to work in the U.S.

Employers aren't required to act on those letters, so workers can present counterfeit or stolen Social Security numbers without much danger of being challenged by labor-hungry bosses.

Under the new regulations, employers would have to sort out the discrepancy by asking the worker for new identity and immigration documents. If the problem still isn't resolved, the regulations say that "the employer must choose between taking action to terminate the employee or facing the risk" of prosecution. Employers who complete and document the multi-step verification process and still don't discover that the worker is an illegal immigrant also wouldn't be prosecuted under the department's safe-harbor provision.
 
The new rules "will provide clarity for employers," said Russ Knocke, a DHS spokesman.

Industries with largely legal workforces will take some comfort in the safe-harbor provisions, said Scott Vinson of the National Council of Chain Restaurants, a trade group. But employers in industries that are highly dependent on immigrants predicted the regulations could lead to a slowing economy.

"Employers might have to start firing, and then you might have a workforce that's barely adequate," said Shawn McBurney of the American Hotel and Lodging Association.

The regulations also are likely to cause paperwork burdens for employers in low-skill industries, which typically have high turnover and attract immigrant workers. Those employers will be faced with sorting through the documents of workers suspected of being in the U.S. illegally, but also of workers who receive no-match letters because of clerical errors,
name changes or records confusion.

The regulation could quiet criticism by Republican conservatives that the administration's failure to enforce immigration laws is attracting some half million illegal immigrants yearly. Under pressure from those critics, the administration has vastly stepped up worksite enforcement in the past year. Immigration and Customs Enforcement agents made 3,839 worksite arrests in the first eight months of the current fiscal year, up from 1,282 in 2005, according to a department Web site.

But advocates of immigration overhaul contend that tougher enforcement will create labor shortages and drive illegal workers into the underground economy, but it won't keep them from coming. Mr. Regelbrugge also predicted that employers would move more operations overseas or, as with agriculture, to Mexico and Canada. "Doing enforcement only is going to have tremendous downside consequences on the economy," he said.