The Employer Penalty

The problem

Nobody crosses a desert for a country with no jobs. The reason unauthorised immigration to the United States has been sustained for forty years is that there has always been an employer at the end of the journey, and the law has always looked the other way. The Immigration Reform and Control Act of 1986 made it illegal for the first time to knowingly hire an unauthorised worker. It also created the I-9 form, which every employer fills in and almost none verifies, and a schedule of fines that a large employer treats as a cost of business. The enforcement that followed has been aimed at the wrong end of the transaction.

The numbers tell it. In the three years from 2017 to 2019 the government arrested more than 1,800 workers at their workplaces, 680 of them in one day at seven Mississippi poultry plants. In fiscal 2018 it recorded 49 criminal convictions of employers or managers. It conducted about 6,450 I-9 audits in fiscal 2019, against roughly eight million employers. The largest fine ever levied on an employer was $95 million, once; the typical civil penalty is in the hundreds of dollars per worker. A raid removes the workers, who are replaced within the week, and the plant runs on. The employer who built a business model on unauthorised labour has, in most years, a lower chance of being fined than of being struck by lightning, and the worker, who took the job because it was offered, carries the whole consequence.

The tool that would change this has been available for two decades and has never been made universal. E-Verify, the federal system that checks a new hire against government records, is mandatory for federal contractors and in nine states for all employers, and voluntary everywhere else. Its error rate is low and falling. It is not used because no one has to use it, and the employers who most want unauthorised workers are the ones who do not.

№ 051 gave every citizen a card that proves one fact. № 003 gave every guest a credential that proves another. This proposal is what those two documents make possible: a hire that can be checked in a second, and a penalty that lands where the decision was made.

The proposal

The Employer Penalty: every new hire in the United States is verified by a scan of the Citizen Card of № 051 or the guest credential of № 003, against the registry, before the first day of work. An employer who employs a person who fails the scan, or who does not scan, is liable for a civil penalty of $10,000 per worker per year, and for a pattern, criminal prosecution and a public entry in the register of № 084. Workers found in unauthorised employment are not arrested at the worksite. A worker who reports an employer for violating the rule receives the guest visa of № 003.

How it would work

1. The scan. Before a new hire begins work, the employer scans the card or credential against the registry, which answers yes or no in seconds and records nothing about where the query came from, under the rules of № 051. The I-9 form and E-Verify are retired; the scan replaces them. An employer with no scanner uses a phone.

1. The penalty on the payroll. An employer who employs a person who failed the scan, or who was never scanned, pays $10,000 for each such worker for each year or part of a year of employment. The penalty is assessed by the Labor Department's Wage and Hour Division, which is already in the workplaces № 084 describes, and it is not negotiable downward. A pattern, three or more unauthorised workers or a second offence, is a felony for the responsible officers.

1. The register. Every finding is entered in the public register of № 084, beside wage theft, so that customers, contractors and the public can see which employers hire off the books. Debarment from federal contracts follows a willful finding, as it does for wage theft.

1. No worksite arrests. A worker found in unauthorised employment is not arrested at the workplace and is not detained. They are referred, with a date, to the immigration system of № 099 and № 100, and to the guest visa of № 003 if they qualify. The raid ends. The people who built the business model on their labour are the ones the enforcement is for.

1. The whistleblower's visa. A worker who reports an employer for a violation, and whose report leads to a finding, receives the five-year guest visa of № 003 on the day of the finding, regardless of their prior status. An employer who hires unauthorised workers has, from that day, a workforce with every incentive to report them.

1. Contractors and the lead firm. The rule of № 084 applies: a lead firm is liable for the unauthorised workers of its subcontractors and staffing agencies on its premises. The construction company that hires through three layers cannot be surprised by the fourth.

1. The guest visa is the door. The Employer Penalty works only because № 003 exists: a five-year guest visa, easy to get, with a credential that passes the scan. An employer who needs workers hires guests, lawfully, through the door. The penalty closes the window.

The numbers

The workers. About 8 million unauthorised workers in the labour force, concentrated in agriculture, construction, food processing, hospitality and domestic work.

The employers. Roughly eight million employers; the share knowingly employing unauthorised workers is unknown, because nobody has ever checked them all, which is what the scan does.

The penalty. $10,000 per worker per year is roughly what an employer saves by paying an unauthorised worker below the legal floor for a year, by the estimates in № 084, and it is set there so that the arithmetic that made the practice profitable stops working.

The scan. The registry of № 051 answers a query at negligible cost; the employer's cost is a phone. E-Verify's current cost to the government is about $100 million a year, and it is retired.

The enforcement. The Wage and Hour Division, funded from penalties under № 084, adds the scan check to the inspections it already conducts. No new agency.

The honest objections

"Mandatory verification will produce false rejections and cost citizens their jobs." The strongest objection to E-Verify, and the answer is the card: a scan of a chip against a registry that holds one fact has an error rate far below a name-and-number check against a database of everyone. Where the scan fails for a citizen, the registry's correction path under № 051 is immediate and presumptive, and the employer may hire pending correction. A citizen who is wrongly rejected has a claim against the registry, not a lost job.

"Farms and restaurants cannot operate without unauthorised labour." They cannot operate without labour, and № 003 supplies it lawfully: a five-year visa that a worker can obtain in weeks, with a credential that passes the scan. The Employer Penalty without the Open Door would be a labour shortage; the Open Door without the Employer Penalty would be a visa nobody bothers with. They are written to arrive together.

"Employers will discriminate against anyone who looks foreign." They discriminate now, by hiring the foreign-looking off the books and paying them less. The scan is universal: every hire, every person, the same second, with no judgment by the employer about who to check. A rule that checks everyone is the rule that cannot be applied selectively.

"The whistleblower visa rewards people for breaking the law." It rewards them for reporting an employer who broke it, and it gives the employer's whole workforce a reason to report. The alternative, in which the worker who reports is deported and the employer keeps the rest, is the arrangement that has protected illegal employers for forty years.

"Ending worksite arrests is amnesty." A worker found in unauthorised employment is referred to the immigration system, on a date, and their case is decided there under № 099 and № 100 in months. What ends is the raid, which removed workers, terrified neighbourhoods, and left the employer to hire again. A serious immigration policy is aimed at the decision-maker.

Sources

• Immigration Reform and Control Act of 1986, Pub. L. 99-603; 8 U.S.C. § 1324a
• American Immigration Council, Understanding ICE Raids at American Workplaces (October 2025), on worksite arrests 2017–2019 and enforcement statistics
• U.S. Immigration and Customs Enforcement, Worksite Enforcement and Form I-9 Inspection fact sheets, fiscal 2018 and 2019 statistics
• Migration Policy Institute, Employment Verification: The Next Front for U.S. Immigration Enforcement?, on state E-Verify mandates
• U.S. Citizenship and Immigration Services, E-Verify performance and accuracy reports
• Proposals № 003 (The Open Door Compact); № 022 (The Turnstile); № 051 (The Citizen Card); № 084 (The Wage Theft Register); № 099 (The Immigration Court); № 100 (The Asylum Docket)