The Hole in Trump's Wall

09/09/2016 06:04 pm ET Updated Sep 10, 2017

Trump's approach to immigration is infamously based on a wall constructed on the border to keep undocumented immigrants from "stealing" American jobs and eroding our quality of life. On August 31, Trump released an immigration plan announcing workplace measures as well. Blaming undocumented immigrants for the decline of the middle class, Trump proposed mandating E-Verify for all employers.

My research on employment practices in farmwork suggests that E-Verify is unlikely to prevent the hire of undocumented workers. Simply put, Trump's plan does not address the role of employers in getting around immigration laws and providing workers with the documents they need. In fact, just like employer sanctions before it, E-Verify is likely to worsen workplace conditions for all those who work in industries dominated by undocumented workers.

In 1986, the Immigration Reform and Control Act (or IRCA) required that employers inspect each worker's proof of identity (a passport or green card) and eligibility for work (a Social Security card) and imposed fines on employers who "knowingly" hired undocumented workers. Yet paltry fines and inadequate enforcement have allowed many small and mid-sized employers to continue to hire undocumented workers with impunity.

In order to work, an undocumented immigrant needs a fake green card and a fake Social Security card. Under IRCA, employers are required to inspect these documents and record the information on federal I-9s. However, employers are not required to vouch for such documents' authenticity. As a result, IRCA has created a thriving black market for fraudulent work authorization papers and encouraged a charade of employer inspection.

E-Verify is an online platform that is supposed to close the gaps in IRCA. It allows employers to access federal databases to verify people's eligibility for work. However, a number of problems still plague the program. For example, its photo-matching tool can only screen three of the permissible forms of proof of identity. So, employers coached undocumented immigrants simply not to present these documents, according to a Government Accountability Office report.

Indeed, in industries dominated by undocumented immigrants, employers have devised elaborate strategies to evade programs such as E-Verify and federal and state oversight. For example, my research on agricultural employers' hiring practices in California's Central Valley shows that those directly responsible for finding the workers--workers' immediate supervisors--often give their undocumented employees a set of valid documents to work.

An employer's size and visibility increases the likelihood of federal scrutiny. Therefore large agribusiness companies often have policies against hiring undocumented workers. Because this poses a challenge to labor recruiters, labor supervisors often either furnish undocumented workers with valid documents or encourage them to borrow the documents of their friends or family members. This a form of what I call "identity masking." As one worker told me, "They say, 'Yes, they have to be good Social Security numbers, but they don't have to be yours.'"

Small farms and contractors are unlikely to attract federal scrutiny for the hire of undocumented workers. However, supervisors on small farms and contractors sometimes use identity masking in order to reduce their labor costs. In California, employers are required to pay time-and-a-half overtime only when farmworkers work more than 8 hours a day, 6 days a week. Smaller employers sometimes require that workers work under other identities on Sundays (or exchange workers with other employers) to avoid paying them overtime.

"Identity masking" is just one example of the flaws in Trump's plan. Employers will likely use the same technique to get around E-Verify. E-Verify's photo-matching tool does not require that employers check the documents against workers' faces, so employers can just give workers the valid documents of other people.

Moreover, without stronger labor protections, employers could use E-Verify to re-verify certain workers' eligibility for employment after they have been hired. Under IRCA, employers only have three days to verify a worker's eligibility for work after their hire. But employers often strategically use the information the federal government gives them about a worker's legal status. For example, employers have used "No Match" letters--the letters employers receive notifying them of a mismatch between a worker's name and Social Security Number--to selectively fire undocumented workers. Employers have used these letters to retaliate against whistle-blowers, liquidate plants, and undermine worker organization.

The National Immigration Law Center suggests that the expansion of programs such as E-Verify must be complemented by strengthened labor and employment protections, like providing all those who report unscrupulous employers with a temporary stay of deportation. This would help ensure that E-Verify does not become a tool to undermine workplace rights and take advantage of workers' vulnerabilities.

Trump's fairytale of our economic woes vanishing with the construction of a magic wall and more technology distorts a complex, multi-layered reality. The middle class is not waning because undocumented immigrants are taking their jobs. Rather, lax labor laws and weak enforcement allows U.S. employers to exploit the vulnerabilities of undocumented immigrants and to weaken the workplace conditions of those who work alongside them. If we wish to "make America great again," we need to keep employers from using undocumented workers as a wedge. And to do that, we need to decriminalize their employment and restore dignity to all workrs through protective legislation and enforcement.