Why Mike Lee wants to exempt household help from immigration enforcement processes.


Daisy won't have to get e-verified under Lee's amendment. (Nick Briggs / Carnival Film & Television Limited 2012 for Masterpiece)

By my count, a whopping 301 amendments to the Senate immigration bill have been offered by members of the Judiciary Committee so far. Chuck Grassley alone contributed 77. Most of these are technical in nature, but a few stand out.

Among them is an offering from Sen. Mike Lee (R-Utah). The libertarian-leaning Republican proposed an amendment to exempt "cooks, waiters, butlers, housekeepers, governessess, maids, valets, baby sitters, janitors, laundresses, furnacemen, caretakers, handymen, gardeners, footmen, grooms, and chauffeurs of automobiles for family use" from E-Verify, the federal government's system that enables employers to check on the legal status of their employees.

The Senate bill stands to make usage of E-Verify mandatory, with large employers required to get on board with two years, medium ones within three, and the rest within four. If Lee's amendment were to be adopted, individual families who have a chauffeur wouldn't have to check his or her legal status.

That vaguely aristocratic connotation earned it the moniker of the "Downtown Abbey amendment" from Adam Serwer at Mother Jones. Unsurprisingly, Lee's office objects vehemently to this characterization.

"The Mother Jones article blew it completely out of proportion," says Brian Phillips, a spokesman for Lee. "It was unclear, if you pay somebody $20 to mow your law, whether that would constitute you as an employer and them as an employee. We clarified that that wouldn't be the case."


Downton is all well and good but Dorota is just the best. (Warner Bros. Television)

More to the point, Lee intended to extend a policy from the Social Security code, which exempts individuals and families who hire "domestic service in the employer's home" from the normal requirement to collect payroll taxes from their employees, provided they pay those employees less than $1,800 annually (this also applies to income tax withholding). You don't have to collect taxes from a teenager babysitter you hire a couple times a year, for instance. So, Lee figured, you shouldn't have to run a E-Verify check on them either.

Indeed, the much-mocked definition Lee's amendment used for service work comes verbatim from the Social Security code, which includes the exact same list of examples: "cooks, waiters, butlers, housekeepers, governessess, maids, valets, baby sitters, janitors, laundresses, furnacemen, caretakers, handymen, gardeners, footmen, grooms, and chauffeurs of automobiles for family use." Phillips explains, "We didn't make that up. We used the exact same definition to make it non-arbitrary."

That much is fair enough, but it's worth noting that the Lee amendment also strikes a provision exempting "casual, sporadic, irregular, or intermittent (as defined by the Secretary)" work from E-Verify requirements. That provision, already present in the bill, was intended to solve the same problem. "Your babysitter, someone who's coming to clean your house, they're already exempt," explains Muzaffar Chishti, who runs the Migration Policy Institute's office at NYU law school.

And the Lee amendment does not only exempt that kind of sporadic work, but even full-time work in the house. Philips gave the example of an au pair as a kind of employee who wouldn't have to be checked up on with E-Verify. That's what troubles Chishti. "Why should we make a restaurant owner culpable, but not someone who has a mansion and hires domestic help?" he asks, adding later, "It's unfair, not to mention indefensible."

In any case, the Lee amendment might be dead before it had a chance to get off the ground. Phillips tells me he expects one the Judiciary Committee's Democratic members to offer a broader amendment that includes similar provisions to the Lee amendment, and that Lee might withdraw his amendment in favor of the Democratic alternative.

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Ezra Klein · May 11, 2013