As an immigration attorney of more than twenty years, I am well aware of unintended consequences. I caution my clients about them all the time – filling out paperwork incorrectly could result in a refused admission, a visa denial, or worse – a bar to adjusting status to become a lawful permanent resident, if deemed inadmissible for fraud or willful misrepresentation. Inadvertently registering to vote when encouraged to do so by the Department of Motor Vehicles (an unfortunate unintended consequence of efforts like MTV’s Rock the Vote voter registration push) could result in criminal proceedings and deportation; failing to complete college course credits due to failing grades could result in falling out of immigration status, the list goes on and on. As if this wasn’t enough, we also have the scenario of a partial government shutdown where the government intentionally throws a wrench into the system.
So now I feel like lecturing the Trump administration. Why? Because of headlines like these:
The Hill: Shutdown halts E-Verify checks
Washington Post: Shutdown worsens strain on U.S. immigration system
Washington Post (Editorial): Trump’s shutdown has paralyzed immigration courts. Oh, the irony.
Seriously – let’s look at what happens when E-Verify (a web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States) stops working: businesses can’t confirm the employment eligibility of their newly hired employees. For a supposedly pro-business, pro-America administration, with an eagle eye on aggressive immigration enforcement, what on earth is the administration thinking? Unemployment is extremely low. According to the World Economic Forum, the U.S. economy is the most competitive in the world. Businesses need to be able to hire workers who are lawfully able to work in the United States. The E-Verify program is part of how many businesses hire. When that system shuts down, businesses can’t check whether someone is eligible to be hired. According to The Hill, even employees on Capitol Hill can’t be checked under the E-Verify system due to the partial government shutdown. So when the partial shutdown eventually ends, and appropriations are made, there will be a backlog of E-Verify employment eligibility checks just like there are backlogs in so many other parts of our immigration system. Then the administration will very likely point the finger at Democrats or immigrants or maybe the employers themselves with some irrational, outlandish reasoning as to why it did not cause the problem.
This means that in addition to my having to explain to my business clients that changes to the H-1B visa lottery process are being proposed by the government just weeks before the H-1B cap filing date and that the lottery process will be a veiled mystery with little certainty; that applying for H-2B seasonal workers has become fraught with uncertainty due to the unprecedented demand for the limited number of visas; and that audits and unreasonable Request for Evidence (RFEs) are increasing; I now have to tell them that this part of the system that verifies both U.S. and foreign workers, has temporarily ground to a halt as well. We must now advise employers that they can go ahead and hire a candidate but they won’t be able to absolutely confirm the candidate’s employment eligibility until a later time. Precisely when, I can’t say. Oh, and there is the additional risk that they may be fined if they hire someone who is not lawfully able to work in the U.S. I have to wonder, is the administration purposely trying to destroy U.S. businesses? And then we wonder and complain, why are American businesses moving abroad?
Unintended consequences to be sure.