How undocumented workers work in the restaurant business:
Most countries have some restriction on an immigrants’ ability to take a job and earn an income. US Citizens can apply for a twelve-month holiday work visa in only five countries; Singapore, New Zealand, Australia, South Korea and Ireland. Without special circumstances, US Citizens cannot immediately work in any other country. Further, US Citizens are only permitted to work in Mexico if 1) they are employed by a US-based company or 2) it is for a Mexican company that can prove there is not a qualified Mexican citizen available for the job.
The US will issue about 65,000 work visas to citizens of other countries each year, affording anyone in the world a chance to obtain a US work visa. The rub is that the US issues the same number of working visas to citizens of each country regardless of the number of applicants or the country’s population. What this means is that the same number of working visas are to be issued to citizens of Iceland (population 332,000) as to citizens of Mexico (population 123,000,000). In 2016 about 4,225 working visas were issued to Mexican citizens.
For those who work in restaurants, the notion of co-workers being illegal immigrants is probably very familiar. In many ways our government has created a default system to normalize and accommodate the 11,000,000 illegal immigrants living and working in the United States.
The restaurant business creates many of the entry level and low skilled jobs in the country. Many jobs in a restaurant, although often physically difficult, are easy to learn and require little or no previous training or experience. Perhaps one of the great virtues of the restaurant industry are the opportunities for advancement for restaurant workers. Most restaurant managers and Chefs started in entry level positions as dishwashers, prep cooks, bussers or porters. Throughout the history of the US, generations of immigrants have been drawn to the restaurant business.
Currently there are about 42,000,000 immigrants living in the US. Of this, according to Pew, roughly 11,000,000 or 26% are here illegally. An illegal immigrant is someone who is either in the US without a proper visa or who is working in the US with a visa which does not allow for employment.
According to The National Review, about 60% of illegal immigrants first entered the US legally but overstayed their visa. The remaining 40% crossed into the US illegally over a border or across an ocean.
In the US, an immigrant is 1.4% more likely to be employed in leisure and hospitality (the hotel and restaurant business) than a non-immigrant. For every fourteen restaurant workers, ten are immigrants. About 18% of restaurant positions (including dishwashers, cooks, bussers, bakers and bar backs) are illegal immigrants.
For those who do not work in the restaurant industry, just how illegal immigrants are employed is a bit misunderstood. People may believe that employers seek out illegal workers by offering sub legal pay or subpar working conditions in exchange for employment. Some may imagine illegal workers being paid in cash so both the employee and the employer avoiding taxes. In practice employers often have no direct knowledge of the legal status of their employees, and illegal workers are afforded all the same protections and benefits by the law as any other worker. An illegal workers’ pay check is taxed like every employee, and both the employer and the illegal worker make tax payments.
Federal law requires that employees complete a form I-9 to verify work eligibility before being hired. The form I-9 requires the employer verify that they have seen current documents which would substantiate the workers right to work in the US. The large number of illegal workers in the US creates a market for counterfeit documents, fake social security cards and fake Permanent Residency Cards (also known as Green Cards). These high quality counterfeits can be impossible to distinguish from a real ID. Furthermore, should an employer suspect that they are being presented with a false ID which results in not hiring that person, the employer could be liable, in the event they are wrong, for the lost wages suffered when the worker is denied employment.
Most illegal immigrants are hired to work using some form of barrowed or counterfeit documentation. They are then afforded all the same benefits and responsibilities for taxes as any other employee.
E-Verify is an online employment verification system created in 1997 by the US Department of Health and Human Services. E-Verify will check a potential employees Social Security number to insure it is valid and matches the employees name. The system is voluntary in most states. Federal law requires that federal employment is verified and anyone contracting with the federal government must use E-Verify. In addition, some states like Arizona and Alabama require employers within the state to use E-Verify.
California passed a law in 2011 preventing cities and counties within California from requiring employers to use E-Verify. In effect, it is illegal to legally require the use of E-Verify in California.
Throughout the country, employers can use E-Verify if they choose to, and the system has shown itself to be effective and accurate. Again it is not required.
As restaurants have a high concentration of immigrant labor (and often many illegal immigrants) fears of immigration raids are both an old and new concern. In a 1980s work place, restaurant immigration raids were not uncommon, particularly in California. Officers from ICE would arrive at a restaurant and begin asking for employees’ identification and to review the restaurant’s form I9 file. The George W. Bush and Obama administrations, under pressure from business groups, largely ended the practice of random work place raids.
ICE may still raid a business, but it will usually be for a larger cause. In October of 2016 four Buffalo area Mexican restaurants were raided by Immigration. In this case it is alleged that the owner of all four restaurants was not paying sales or employment taxes and was deliberately hiring undocumented workers. The recent raid, and arrest of fifty-five people working for a group of Chinese Restaurants in Mississippi was similar to the Buffalo raids. In both cases it is alleged that the restaurant owners were purposefully hiring illegal workers, paying the workers in cash, not paying payroll taxes and also not paying forward sales taxes. Although the Mississippi raid happened after the inauguration of President Trump, the investigation had been ongoing for almost a year. Both cases appear to have been instigated by a complaint to law enforcement.
If asked, employers are required to provide federal officers all copies of their employee I-9s. The law does allow the employer three days to comply. Consider keeping a single file with your I-9s in a location away from your business. If asked to provide these forms you can ask for the time to collect them from the other location which may allow time for some review for mistakes. There is no legal requirement to make copies of an employees’ ID or Social Security Card. You will also not be asked to provide the entire employment files. Keeping the I-9s separated from your other employment documents will prevent the occasion of providing officers with documents they are not asking to see.
Many illegal workers file tax returns, and the IRS is prevented by law from reporting an illegal worker to any other agency. The worker will often have provided a fake Social Security number to their employer. The employer pays payroll taxes and make deposits using this fake number. Come tax time, the worker will request an ITIN, (an individual Tax Payer Identification Number) from the IRS in their own name. Income from W2s and any other tax reporting done with the fake Social Security number is then declared on the tax return using the workers real ITIN number. The IRS is aware of both numbers. If a refund is due, it will be forwarded to the worker using the name and address from the ITIN number.
The lack of a national requirement for employers to use E-Verify has created a system in which illegal workers can be employed. As this system is not formalized and depends on a lack of law enforcement it is reasonable to conclude that this system is not stable and likely will change in the years to come.
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