Fresh HB116 Review: More Red Flags And Virtual Indentured Servants (Update)

First, given the corporate cronyism, this has the Salt Lake Chamber Of Commerce written all over it. I finally had time to thoroughly read HB116 (rather than racing through it). Here are a few of the problems I found in addition to those already documented (please read those first). The text of the enrolled bill is available here as a PDF file or in other formats on the bill’s page. Note: Numbers in the text bellow are line number references found in the legislation.

Pyramid Schemes Are Cool

Under the definition of “Serious Felony” (562), they included most of the references to Utah Criminal Code. One inexplicable exception is that there is no reference to Chapter 6a (“Pyramid Scheme Act”). That means an illegal immigrant can run a pyramid scheme and still qualify for the work permit. The only reason I can think of that this was excluded is due to sloppy oversight because legislators and their backers were in such an abject rush to pass the bill before the public (or fellow legislators) could view and digest the bill.

Be aware that other than “serious felonies”, there are plenty of serious (eg drunk driving) and violent misdemeanors that can be perpetuated and not result in the loss of permit eligibility (754-755). UPDATE: A real world example of a qualifying criminal.

Taxpayers Subsidizing Programs

Lines 599-612 allows the legislature to appropriate (your) money to costs associated with lobbying the federal government (this has already begun) to grant waivers demanded in the legislation.  The family permits (796), permit renewals (805), payment program (826-840), bond program* (854-864), permit violation enforcement (933-947), and victims account (1428-1429) will be costly to administer and enforce (if possible); you taxes will pay for this. It is also uncertain whether the initial permit fee will cover the costs of the first permit especially as family permits are added on to it (spreading the fee over several other permits which can also be used to work)**. Further, the illegal immigrants only directly pay for is the background check (792-794) and their single (not family), initial permit (818-823), an unenforceable English proficiency test (878) and nothing else including permit renewals.

Corporate Welfare For Unscrupulous Employers On Backs Of Legal Workers

Employers don’t have to pay for unemployment insurance for illegal immigrant employees (no provision in bill and see 718 and 911 as well) and are not required to insure nor provide for the medical costs incurred by their illegal workers. That is not the case with legal workers (US citizens and legal immigrants) [Edit: Yes, that means it would be cheaper to hire an illegal worker than a legal worker].  Not sure if Worker’s Compensation insurance would apply to the illegal workers either.

Illegal workers can incur medical debts with no requirement that they or their employer pay the debt. Lines 758-761 give them the option to get basic insurance OR show they have no medical debts prior to obtaining the permit. Once the permit is issued, there is no further requirement. Further, the second option (no debt) is unenforceable. Most use a stolen social security number (SSN) thus there is no easily traceable record of their debts (while their victims may be contacted by debt collectors and/or have their medical records corrupted). Illegal workers need only provide “satisfactory evidence” which can simply be a notarized statement that they have no medical debt. It is highly unlikely the SSN they used will be discovered as they aren’t required to disclose it. Many also tap into taxpayer funded health care for their US born children (thus limiting potential debt). Again, all these costs are pushed from employers to taxpayers and ID theft victims while providing labor cost subsidies compared to those who hire legal workers.

Shades of Indentured Servants

The bill prohibits illegal workers to be absent from work for greater than 10 days without their employer’s permission (915-916). If they are, they can lose their permit and pay a $750 fine (924-927). They aren’t just fired. This certainly borders on indentured servitude in my book. If they don’t like their employer and want to change employers, this provision would require that they get their ‘bad’ employer’s permission first. They are entirely at the mercy of their employer (there is no provision for amending Utah labor law to include these employees).

Incentives For Violation

Employers caught hiring non-permitted illegal workers only have to show they made a “good faith” effort to do so. That seems to be a pretty vague, low standard and practically unenforceable.

The fines border on delusional. The first violation will cost an employer $100 while a second costs $500. The third violation revokes your license for no more than one year (likely much less). Let’s face it, there are no teeth and employers aren’t going to help an illegal worker pay for a permit etc – they’ll just hire them and take the risk of having to pay a measly $100.  Actually as an illegal immigrant, I would prefer such an employer as I could leave at anytime without employer permission (see previous section) – no indentured servitude.

It appears that employers could also hire an illegal worker who does NOT have a work permit as long as they are only hired for less than 30 days (722-723) in a two year period (730). There is really no feasible way to track or enforce this without incurring significant investigation costs (effectively, it’s unenforceable). It’s a gigantic loophole. Employers can use “temporary” illegal workers with impunity and/or simply claim the worker is only working for a few weeks if confronted.

For those that actually choose to get a permit (and be under an employer’s mercy), there appears to be no reasonable way to determine which fee (818-823) an illegal immigrant should pay as there is no requirement that they provide proof of once holding a valid visa. They are just trusted to be honest and pay the extra $1500. Even if they are caught with fraudulent documents, they are only charged with a Class B Misdemeanor (928-931) rather than a felony. They may also lose their permit, but still be able to find plenty of work (see above section). Furthermore, a Class B Misdemeanor does not disqualify them from getting a new permit (only a serious felony conviction disqualifies – 754-755).

Taxpayer Funded Employment

By granting a permit to illegal workers, the bill allows taxpayer funded entities to hire illegal workers. They can directly work for the State and local government and/or be contractors for those entities . That’s your money going to pay for illegal workers, many of whom have committed identity theft.

Absolution From Identity Theft

The bill has no requirement to divulge which identity (Social Security Number) illegal workers used prior to obtaining their card. Many victims (especially child ID theft victims) will be left in the dark only to discover years later that their identity has been corrupted. Frequently, that discovery is at a critical juncture in their lives such as when applying for student loans or need-based programs. Worse, some victims’ (especially those with serious health conditions) medical records may have been corrupted and they will not be informed of the identity breach leaving a potentially life-threatening problem to fester.

It should also be noted, that fraudulent document dealers will easily and readily produce documents indicating illegal immigrant ‘residency’ in the State prior to the cut-off date (746). Such documents are much easier to produce compared to those they already produce for the illegal immigrant community. The penalty, specified by the bill, for using forged documents is a misdemeanor (754-755) and the perpetrator remains eligible for the permit (see previous section).

Lets face it, the required background check (769) is a joke. The vast majority of illegal workers use a fictitious or stolen ID which they are not required to disclose. Good luck on the background check having the means to yield anything substantive.  UPDATE: To make the background check even more pointless, only the initial applicant must submit the check, their family members do not – the definition of “guest worker permit” (517), which requires the background check, excludes the family permit found in 63G-12-206 (796).  Therefore, a convicted criminal illegal immigrant could have a ‘clean’ family member obtain the initial permit and they would get the family permit and avoid the background check.

Misconception On Family Permits (But…CAUTION!)

There is a misconception on the family permits (796-803) I will clear up with a strong word of caution as that misconception may become reality. Some think that the family permits can be used to bring in extended family. At this time, the permit is limited to the immediate family (defined at 520-524). However there is a definition of “family member” (503-511) which includes “individual who is similar” (does that mean someone who is “like a brother”…). The term “family member” is not used in the legislation. So why is it in there? Here’s the caution: the bill could be changed by simply striking the word “immediate” and adding “member” in just five locations (531, 796, 797, 846, and 875). Such a change would only need be one or two lines long and easily sneaked into a ‘clarificatory language’ bill. “Family member” is a very dangerous definition lurking in the bill and may well serve as a Trojan Horse.

Government Protection

It appears that the State will not disclose any records related to employment verification of illegal immigrants (885-903) – likely to avoid another “List” incident. The State is also exempted from being sued if they don’t do their due diligence on permits and a permittee harms others (904-908) from murder to identity theft to negligence. This may have been included simply because they know the amount of ID theft involved and don’t want to be liable for issuing permits while not informing victims.

Disingenuous Fund For Victims

A victims account is established by the legislation to help victims of identity theft. However, neither the perpetrator nor their employer is on the hook to pay fines directly to the fund – the legislature is going to take your money (taxes) for the fund (1426-1429). In order to get anything from the fund a victim must file a claim within a year of the conviction of the identity thief (1435-1439). Often victims don’t find out about the theft and the year deadline will be very difficult to meet. Not only are very few of these thieves caught and convicted, but the victim also has to seek redress via a public or private source (often in court)(1440-1444) – this will make the one year deadline near impossible to meet (likely by design). Additionally, it takes the legislature voluntarily funding the account, something that is quite unlikely. Taken together, this all amounts to a snipe hunt.

Miscellaneous/Open Questions

Employers who have less than 15 employees don’t have to comply with the law at all – they can hire who they wish with no eligibility verification (954-956).

The voluntary registration program (1071) is a farce: Who’s going to pay $100 to advertise to the public and federal law enforcement that they hire illegal workers?

Lines 713-717 – Does this mean any illegal immigrant can get the permit regardless of the date they are in the State as long as they are in a “employer based work program”?  It looks to me like this is a way to open up the Utah permit to all 12 million illegal aliens should other states enact similar employer based programs.

Based on the enormous power endowed on business while pushing costs and responsibility to victims and taxpayers and subjugating permittees to the employer, I can’t help but feel that the Salt Lake Chamber of Commerce wrote this bill. The above observations are the types of issues which should have been addressed in an open debate on the specific legislation. Instead, a ham-fisted approach, reminiscent of Obamacare, was taken and the bill rammed through late at night on an unscheduled late session with no public discourse. Even if I supported the bill, that reason alone would be reason to demand repeal. If you feel the same, please sign the petition to repeal HB116 and contact your legislators.

Edit: Added line number in “Disingenuous Fund For Victims” section – sorry about missing that. Also, click here and scroll to the end to view the constitutional note attached to the legislation, for those interested in the bill’s avowed unconstitutional nature (see here for more detail on unconstitutionality).

UPDATE (4/20): See in-text update in the “Absolution From Identity Theft” section.

UPDATE (5/16): Also found out the cut off date  (May 10, 2011 – line 746) for presence in the state to qualify for a permit only applies to the initial permit.  That means there is no cut-off date for the family permits.  In other words as long as one family member is here before the date (or gets cheap, easily forged documents of such), they can bring in their family and give them permits.  Also, they could have their family enter the country illegally after the date and get them the permits with no consequence.  Again, another example of rewarding illegal behavior.

* There will only be a bond program if the federal government allows it, otherwise there will be no bond required (850-853). Also only individuals are subject to the bond amount, there employer is exempted from this (again more corporate cronyism).
**Family permits don’t cost anything as the definition of “permit” includes family permits (528-531). If “and” were “or” in the definition then each initial permit would incur the fee.

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