Posted on 02/27/2019 at 03:59 PM by Russell Samson

Twenty-six Republican Senators are listed as co-sponsors of a bill introduced in the Iowa legislature, identified as S.F. 243 (2019).  The current draft legislation contains an explanation, with a the disclaimer: The fact that the draft legislation contains an explanation should not lead to an inference that any member of the general assembly, in affirmatively voting for the legislation, agreed with the substance of the explanation.  The explanation for 2019 Iowa S. F. 243 states that it, “prohibits employers from knowingly employing unauthorized aliens.”

I do not practice immigration law; I do not profess even rudimentary knowledge of the intricacies of immigration law in this country.  I do, however, practice employment law, representing primarily employers.  So I have a working knowledge about what is expected of an Iowa employer when it first hires an individual.

All employers in this country, Iowa or otherwise, are currently subject to the prohibition of 8 U.S.C. § 1324a, entitled “Unlawful employment of aliens.”  8 U.S.C. § 1324a(a)(1) states that it is unlawful for any entity “to hire . . . for employment in the United States an alien knowing the alien is an unauthorized alien.” That statute continues that it is further unlawful to hire any person for employment in the United States “without complying with the requirements of [8 U.S.C. § 1324a] subsection (b).” 

8 U.S.C. § 1324a, subsection “b” is entitled “Employment verification system.”  This is colloquially referred to as the “Form I-9” system.  For the uninitiated, the Form I-9 currently has three pages, the last of which is a list of acceptable documents.  The instructions for completing the Form I-9 , at least when this was written, were 15 pages long.  Under the statute, there are three main components of this Form I-9 “employment verification system.” 

  1. The individual seeking to be hired “must attest, under penalty of . . . that the individual is a citizen or national of the United States, an alien lawfully admitted for permanent residence, or an alien who is authorized . . . to be hired, recruited, or referred for such employment.”   In addition to this attestation under perjury, the individual must provide for examination original documents which would establish both the person’s identity (i.e., that he or she is who she claims to be) and that he or she is in fact eligible to work in the United States.
  1. The entity which is doing the hiring “must attest, under penalty of perjury . . . that it has verified that the individual is not an unauthorized alien by examining” one or more original documents which establish both the identity of the person being hired and that the person being hired is authorized to be employed in this country. The current (as of the date this is written) instructions for the Form I-9 tell the individual that an employer must accept the document(s) tendered by the individual if they “reasonably appear to be genuine and to relate to you.”  The instructions continue that the employer examination is to occur in the presence of the individual.
  1. The statute contemplates that all this information under penalty of perjury will be memorialized “on a form designated or established by the Attorney General”  --thus the Form I-9 -- and that the employer will keep the completed form for the longer of three years from the date of hire or one year following the termination of employment.

Assuming that the Form I-9 has been completed as contemplated by law, we can assume that the “unauthorized alien” is a scofflaw:He or she did make an attestation under penalty of perjury that the unauthorized alien knows to be false.That is a federal criminal act. 18 U.S.C. § 1621. The same cannot be said of the employer – so long as the documents examined “reasonably appear to be genuine.”(And one needs to remember not only the nondiscrimination provisions of immigration law, but also the federal and state civil rights statutes prohibiting discrimination based on such things as national origin.If an applicant has a driver’s license with a picture of a Caucasian, blonde, blue-eyed male with a name Kareem Abdul Jabbar, those facts do not yield something that should be rejected.)

Iowa employers are (hopefully) aware that within fifteen days of hiring an individual, the employer is required to complete a “Centralized Employee Registry Reporting Form” and submit that form to the Iowa Centralized Employee Registry.To complete that form (as it exists on the date this is written ) the Iowa employer must have -- in addition, of course, to the employee’s name -- both the employee’s date of birth and the employee’s Social Security number. One wonders if the State of Iowa is using the filings with the Central Employee Registry to see if there are multiple instances of the same name / same Social Security number simultaneously working throughout the state.

Which brings me to Iowa S.F. 243 (2019). Ignoring the explanation in the bill – the “prohibits employers from knowingly employing unauthorized aliens” – what S.F. 243 does is to require virtually every Iowa employer in the state to utilize the federal “E-Verify” program. And failure to comply with its provisions can result in some fairly Draconian sanctions, including the loss of all licenses that might be required to do business in this state.

I am  not sure what the 26 Republican Senators think “E-Verify” does.  I would encourage them, and encourage all Iowa employers (especially all smaller Iowa employers), to go to the federal government’s E-Verify web site here to gain an appreciation of what is required of an employer under E-verify.  While larger employers most likely have large HR departments to assure that the process is done correctly, using the E-Verify system appears to me to be an extraordinary burden on a smaller Iowa employer.

To use E-Verify, an employer is to take information from the completed Form I-9.  The use of E-verify does require that the employer require that the “identification” document include a photograph (remarkably, to me, the Form I-9 process does not require that the document establishing that one is who one claims to be include a photograph), it requires the employer to obtain the Social Security number (not something that can be “required” as part of the basic completion of the Form I-9, but which Iowa employers can require today to complete the Centralized Employee Registry form), and finally it requires the employer to obtain the individual’s date of birth.

An employer hires a new employee, completes the Form I-9, and obtains the information necessary to open a new “E-Verify” case.  Specifically, the employer needs to obtain the name of the new employee, the date of birth of the new employee, and the Social Security number of the new employee.

  • Recalling my college days more than a half century ago, how difficult is it today – especially given today’s technology – to obtain a photo ID, with a fake name but the individual’s “real” picture and “real” data like height, weight, and eye color?  The “photo ID” does not have to be a driver’s license. List B for Form I-9 includes a school ID so long as it includes a photograph. Given that students at a community college or indeed any college or university can be of any age, “age” – a basis protected under the Iowa Civil Rights Act from 18 or older -- should not be  something an employer should use to question the proffered document. List B also includes as an acceptable document an ID card issued by a local government entity so long that includes a photograph.  Would a library card with a picture and a fake name meet the requirement?  Again, the picture ID clearly does not need to be the “high tech” driver’s licenses being issued in Iowa today.
  • Date of Birth.  Being arbitrary, I note that the first listed name among the 26 Republican sponsors of Iowa S.F 432 (2019) is “Garrett.”  According to Wikipedia,  one Julian Garrett is currently a member of the Iowa Senate:  “Born November 7, 1940 (age 78)  Des Moines, Iowa.”   So much for that piece of required information -- not so hard to come by with today’s technology.  Turning to “Iowa Courts Online,” I can learn what the middle name may be -- one “Julian Burgess Garrett,” who is listed as being born on 11/07/1940, is listed for both when he is a party to specific litigation, but also where he (as an attorney) represented a party.
  • Which leaves the requirement that a scofflaw seeking employment in Iowa have a Social Security number that is tied to a real person in the Social Security database.  In this age of identity theft, if one is in the business of creating “false paperwork” which matches up living persons with their Social Security number, how difficult is it to obtain the latter information?  Senator Garrett is listed on Wikipedia and on his own legislative website as an attorney and farmer. Was Senator Garrett practicing law when the Iowa legislature – during the 1993 legislative session, in Chapter 171 (the appropriations bill for the justice system) -- added Section 602.6111 to the Iowa Code.  Under that mandate, each petition or other document filed with an Iowa court which brought a person into an action “shall bear . . . the employer identification number or the social security number of each separate party.”  Laws of the Seventy-Fifth G.A., 1993 Session, Chapter 171, p. 412.  What is today Iowa Workforce Development used to issue unemployment compensation decisions using the Social Security number of the claimant.  My point:  The State of Iowa itself can be a source for an unscrupulous fraudster to obtain Social Security numbers which match with names.

We know that an unauthorized alien seeking to obtain employment is engaging in conduct which is criminal under federal law.    We know that such a person has no problem committing perjury, attesting that she or he in authorized to work in this country when he or she is not.  Is it not reasonable to infer that such a person has no problem in tendering false documents in conjunction with the completion of the Form I-9.

And if that false documentation bears the name, the birthdate and the Social Security number of a real person -- a person who in fact was born in America and was issued a bona fide Social Security number -- when an Iowa employer opens a “new case” in E-Verify and enters that name, that birthdate, and that Social Security number, the SSA computer will not take too long to spit out that the person identified is indeed authorized to work in the United States.

What is the problem that Iowa S.F. 243 is intended to address?  And does requiring all Iowa employers to use “E-Verify” adequately remedy the problem when the system can be subverted through “fake ID’s”?  Or does S.F. 243 merely add another layer of regulation on Iowa businesses – especially smaller Iowa business which may lack the sophistication or personnel to comply – without a balancing benefit?  It certainly opens the door to a new cottage industry (which most likely will not be complying with the law) of creating false documents.


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