By Lori Weisberg and Roxana Popescu, The San Diego Union-Tribune

Hours after the surprise raid this month at Buona Forchetta, an Italian restaurant in the city’s South Park neighborhood, where masked and armed U.S. immigration agents handcuffed employees and eventually took four workers into custody, a still rattled Matteo Cattaneo was trying to process what had happened to his business — and why.

By any chance, had he used the federal government’s voluntary program, E-Verify, to authenticate the legal status of his workers, a reporter asked him. No, said Cattaneo, the owner of multiple Buona Forchetta restaurants in California’s San Diego and Orange counties. “There’s a lot of concern with privacy.”

So how did he know if all his employees are legally authorized to work? “We get presented with papers,” he responded. “Nobody can know for sure if everyone is legal.”

As raids by U.S. Immigration and Customs Enforcement officers continue to intensify at workplaces across California, often exploding into confrontations between agents and the public, it’s a pressing question facing most employers, now more than ever.

In places that rely increasingly on immigrant labor, how do businesses truly know for certain if their new hires are legal in the eyes of the law? And could they even survive, especially in sectors like leisure and hospitality, construction and farming, without using undocumented workers to staff restaurant kitchens, clean hotel rooms, mow lawns, and harvest fruits and vegetables?

Even President Donald Trump, who in recent weeks has doubled down on ICE raids of businesses — from Home Depot parking lots to car washes — has acknowledged the urgent need for immigrant labor when he called for what turned out to be a temporary halt to an immigration crackdown on farms, hotels and restaurants.

In a recent post on his social media platform, he declared, “Our great Farmers and people in the Hotel and Leisure business have been stating that our very aggressive policy on immigration is taking very good, long time workers away from them, with those jobs being almost impossible to replace.”

While the government’s E-Verify system is regarded as an increasingly reliable — although not infallible — way of weeding out undocumented workers, few businesses use it, for a variety of reasons. For one, it’s not federally mandated. And it’s considered by many businesses to be more burdensome, vulnerable to error, and, as some suggest, probably too effective in removing the cheap and plentiful supply of undocumented workers on which the U.S. economy relies.

“Why would employers use it if they know that the workers they are hiring are unauthorized, and the reason they’re hiring them is because there are not enough U.S. workers in the first place,” said Muzaffar Chishti, a senior fellow with the Migration Policy Institute, a nonpartisan think tank. “In reality, unauthorized people are employed all the time. So E-Verify would defeat that purpose.”

What began in 1997 as a pilot program through the Illegal Immigration Reform and Immigrant Responsibility Act eventually morphed into E-Verify in 2007.

In California, more than 321,000 business locations were using E-Verify as of March, according to the program website. That amounts to about 18% of employer establishments in the state, based on calculations using data from the Bureau of Labor Statistics. A public records request seeking information on E-Verify participation in San Diego County was filed with U.S. Citizenship and Immigration Services, but a response was not received in time for this story.

While E-Verify may be considered the gold standard by the federal government for properly authenticating new hires, employers still have multiple options for accurately confirming on their own the legal status of their workers, say human resources experts. Whatever system an employer embraces, though, it cannot address the reality of a narrowing labor pool of legal residents, analysts counter.

“Our economy is dependent on immigrant workers,” Chishti said. “And since we don’t have an immigration system that would allow people to come legally, we then become reliant on unauthorized workers.”

The current dependence on immigrant workers has evolved over decades, against a backdrop of steadily falling U.S. birth rates, an aging workforce, limited pathways to legal residency, and the reality that certain low-paying jobs simply hold little appeal for U.S.-born workers.

“Even if you raise the wages of picking tomatoes in our farms by 100%, we still would not have U.S. workers willing to do those jobs,” Chishti said. “Some of the jobs are so inherently backbreaking, to put it mildly, that U.S. workers just would not take them. So those industries — since the cost would be so high, we would lose them all. They would go abroad.”

While San Diego County has long been a region of immigrants, that’s especially so for certain sectors of its economy. Foreign-born residents account for roughly 40% of workers at lodging businesses; 26% at restaurants; and 60% at landscaping services companies, according to U.S. Census Bureau data, which doesn’t distinguish between documented and undocumented workers.

Those percentages are likely to rise, given San Diego’s recent population growth trends. Last year, the county would not have grown were it not for a 22% surge in immigration.

Hiring is ‘like the Hunger Games’

Several employers interviewed for this story requested that they not be identified when discussing how they hire their employees, out of fear of drawing the attention of federal immigration officials. One hotel operator said, “We have a target on our backs now.”

A longtime restaurateur with multiple venues said his company has chosen not to use E-Verify because he feels he is already complying with the law. The reality, he said, is finding enough workers to staff restaurants remains challenging, even as hourly pay has increased above minimum wage.

“Hiring has been like the Hunger Games the last few years,” he said. “We’re spending thousands of dollars a month on ads, and we’re getting slim pickings. Sometimes they come in with an ID, some come in with no papers and we tell them they’re not eligible to work.

“I’m just trying to keep the business afloat with the least number of hurdles while being legally compliant. But if they were to make E-Verify mandatory, I don’t know what would happen. It would be very dangerous because it would make a lot of people have a hard time opening their doors.”

Under federal law, both the employer and the employee have to take steps to ensure a worker is authorized to work in the U.S. For every worker they hire, employers have to complete an I-9 form, which is used to establish a worker’s identity and right to work, and employees are required to show proof that they are allowed to work in the U.S. This has been the law since 1986.

In some cases, one document is enough to prove someone has the right to work. The list of permitted documents includes a U.S. passport, green card, and a foreign passport with an I-94 form, which is a record of the person’s entries into and departures from the U.S.

Another way to prove eligibility to work is to provide two types of documents: one that establishes identity, such as a driver’s license, and one that establishes someone’s right to work here, such as a Social Security card, a Native American tribal document or a document from the Department of Homeland Security.

To review the documents and be sure the I-9 is filled out correctly, employers can do a manual check or they can submit copies of the documents to E-Verify, a free online government tool that cross-checks the information on an I-9 form against government databases, including the U.S. Department of Homeland Security and Social Security Administration records.

Employers can still rely on other resources for employee authentication, says immigration lawyer Teodora Purcell.

“Major providers include The Work Number (operated by Equifax), LexisNexis, TrueWork, Checkr’s I-9 verification services, and various background screening companies,” she said. She added that employers might choose private providers for several reasons, including more comprehensive services that “go beyond basic work authorization to include income verification for lending or housing applications.”

While some employers say they shy away from the federal system because they suspect it’s not entirely reliable, the accuracy is said to have improved significantly in recent years.

“In a time of rampant document fraud, E-Verify checks government databases to verify employee documents, reducing unauthorized employment,” said U.S. Citizenship and Immigration Services spokesman Matthew J. Tragesser in an emailed statement. “E-Verify consistently receives high marks from users and maintains a nearly perfect accuracy rate, while requiring no special software or additional costs to employers.”

He pointed out, though, that employers still have the legal obligation to “ensure employee-presented documentation reasonably appears to be genuine and relates to the person presenting it.”

‘Why would you expose yourself?’

In California, local governments cannot require businesses to use E-Verify. Federal contractors and in some cases subcontractors are an exception, as are a handful of states. But some business owners still choose to opt in.

Using E-Verify as a fail-safe tool for ensuring legal hiring seems like a no-brainer, says Chad Cline, co-owner of the Waterfront Bar & Grill in San Diego’s Little Italy and several other dining venues. He says a third-party human resources company handles that for his businesses.

“I don’t understand why you wouldn’t. I understand the labor pool is smaller, but everything is competitive,” Cline said. “In 2020 when I couldn’t find anybody, we were looking in prisons at that time, but they still have to check all the boxes. Why would you expose yourself? I feel like everybody will be looking at their kitchens now and double-checking, and if they feel exposed, they’ll be addressing it however they can.”

Phil Blair, the co-owner of Manpower, a staffing agency, says he’s well aware of today’s hiring challenges but that would never keep him from using E-Verify.

“First, it gives employers the cover they need to prove they are following the law by checking government records that the employees they are considering hiring are legal to work in this country,” he said. “This should not be an ‘if you don’t want to hear the answer do not ask the question.’ Our company has been asked (by some companies) to not E-Verify employees that they want Manpower to hire on their behalf. Huge red flag warning and not the level of clients we want to serve.”

Employment attorney Anthony Zaller says his clients, which include restaurants, are increasingly becoming more receptive to using E-Verify as a form of risk mitigation that overrides the perceived burden — a change that has taken root over the past year, he said.

“I think some proactive business owners have been saying, ‘I’m just going go through the I-9 E-Verify process and know 100% that the documents those employees are providing to me are authentic and they’re authorized to work in the U.S.,’” said Zaller, the founding partner of the firm Zaller Law Group. “It takes this risk out of the equation that somebody lied to you when they’re applying for the job or filling out the I-9, and they could be caught up in an ICE raid.”

Even with E-Verify, though, it appears some businesses may still find themselves in the crosshairs of an immigration crackdown. A recent raid at an Omaha meat production plant where immigration agents took dozens of workers away in buses, puzzled the owner, who said he uses the federal verification system for hiring employees. When he protested to the agents, their answer, according to an AP news report, was the system “is broken.”

Legal liability

If a business is found to have undocumented employees, the question arises, is it the employer who’s culpable or the workers — or both?

For workers, the penalty for giving false immigration or identity documents to an employer can include prison time or deportation.

But there’s also an obligation of the employer to do its own due diligence when hiring. Under federal law, a business can face sanctions for knowingly hiring and employing unauthorized workers. That was the case last week when the former general manager of an El Cajon metal coating business was sentenced in federal court for a misdemeanor criminal charge related to the hiring of undocumented workers. He received one year of unsupervised release and was ordered to perform 50 hours of community service and pay a $10 special assessment.

The sentencing came three months after heavily armed personnel from ICE and Homeland Security Investigations detained workers at the facility. Three company employees were charged with felony counts of making false attestations on government work authorization forms.

No charges have been filed yet in connection with the recent raid at Buona Forchetta. The search warrant in support of the raid alleges that documents presented by some employees, namely green cards that are issued when an individual becomes a lawful U.S. resident, “showed obvious signs of being fraudulent.” Telltale signs, the warrant said, were inconsistent fonts and holograms, poor fine-line printing, and photographs of poor quality.

On the Immigration Services website explaining acceptable documents for employee identity and authorization, it’s noted that the department redesigns the permanent resident card every three to five years to guard against fraud. It also points out, however, that cards with previous designs remain valid until their expiration date.

Clarke Ramsey, who owns Le Perv Landscape, said he checks to see that I-9 forms are filled out properly and match the documents workers turn in.

“That’s all that’s really required at this point,” said Ramsey, whose company was founded in 1978 and now employs 35 workers. One red flag he looks out for is if someone’s name does not match the paperwork that’s submitted. Even as he is aware of raids by ICE becoming more prevalent, he’s not more interested in using E-Verify, he says.

“There’s kind of two sides to that,” he said. “As long as we are following the law, I don’t feel there’s any potential liability for us, if someone has produced false papers that are good enough to fool us. So I’m not too much worried about us.”

Similarly, longtime restaurateur David Spatafore insists he’s sufficiently compliant with the laws governing hiring so why would he need to use E-Verify as an extra step in what he says is already a cumbersome, time-consuming process.

“We have nothing to worry about. If someone gave us false documents they created and passed through the system and we get called out, we still have done everything we needed to do legally to employ that person,” said Spatafore, whose company, Blue Bridge Hospitality, includes several Coronado dining venues, as well as Liberty Public Market.

“When you hire someone there’s an element of trust, so if they give me a driver’s license or Social Security card, there’s an implicit trust that the document is good. If you hand me something and the ink is bleeding off, and the name is off, we’re not going to take that document.”

From a legal standpoint, employers have to straddle a delicate line, says employment attorney Dan Eaton. On the one hand, they need to take steps to ensure they’re hiring legally authorized workers. On the other hand, if they question prospective hires too aggressively about their paperwork and legal status, they risk being found guilty of discrimination.

“Whatever system you use, you have to use it uniformly and if you’re subjecting certain employees’ documents to one level of scrutiny and others to a different level of scrutiny, there are strong employee discrimination protections within the I-9 law,” Eaton said. “If the document you’re given gives you a good faith reason to believe it’s authentic then you have complied with the law, even if it turns out it wasn’t authentic.”

While immigration raids, even under the current administration, aren’t especially common, employers still have to remember that they can be subject to I-9 audits, warns a human resources expert, so employment records need to be carefully checked — and retained.

Five years ago, Con Pane Rustic Breads and Cafe was forced to close following a federal immigration audit that the then-owner said at the time uncovered a number of employees to be unauthorized workers. The Cohn Restaurant Group later took over the business and reopened the bakery.

“You need to have a policy of preparing your workplace for immigration enforcement and what to look for,” said Emily Dickens, chief of staff for the trade group SHRM (Society for Human Resource Management). “We’ve encouraged people to be proactive, don’t just accept things at face value. There are too many opportunities for your business to be in jeopardy for not being compliant when you’re beginning to hire people.

“You cannot put this at risk, no matter the size of your organization.”