A recent flurry of prosecutions indicates that may be changing. From May 9-12, Immigration and Customs Enforcement agents arrested six business owners and 105 workers in five states, and judges accepted guilty pleas and ordered jail terms for four other business owners who had hired illegal workers.
Skeptics call it an election-year gimmick.
ICE agents still "don’t go to workplaces," says Minneapolis immigration attorney Patrick Hughes. "They don’t do anything. Everyone knows where you can go to work with fake documents the day after you arrive, and immigration stays away from them. It’s wink-wink. It’s all for business."
"A year ago, I would have said that’s right, but I do believe that the tide has turned," says Bonnie Gibson, a Phoenix attorney and managing director of the immigration division of Littler Mendelson, a nationwide employment law firm.
But Julie Myers, director of ICE, which is part of the Department of Homeland Security, insists she’s serious—though she needs another $41.7 million and hundreds more agents to prove it.
Employers who try to follow the law still run little risk of prosecution. ICE doesn’t have the resources, or permission, to expand operations beyond businesses that affect national security or that are closely tied to the procurers and exploiters of the undocumented workforce.
How did we get to the point that immigration agents need permission to enforce the law?
A history of failure
It was not illegal to hire undocumented people until the 1986 Immigration Reform and Control Act made it so, and specified modest fines for violators. But busting employers of illegal workers, rather than the illegal workers themselves, was always last on the Immigration and Naturalization Service’s list of priorities, and it’s still last on the list, according to an August 2005 study by the U.S. Government Accountability Office.
Simply put, employers have political muscle, and undocumented workers don’t.
On the few occasions when the INS did round up workers en masse--arresting 4,304 Georgia onion pickers in 1998 and seeking 4,495 Nebraska meatpackers with dubious immigration documents in 1999--the business owners and their congressmen and senators claimed that the INS was hurting business, and the agency backed off.
In 2003, hoteliers, meatpackers, construction industries, growers and the U.S. Chamber of Commerce formed the Essential Workers Immigration Coalition, whose mission statement says, "There simply are not enough people to meet the demands of our growing economy."
Workplace immigration law enforcement stopped dead. In 2003, ICE ordered its field offices not to open new workplace enforcement cases unless they involved "critical infrastructure," such as nuclear plants or airports.
Work-site arrests of undocumented workers declined from 17,554 in 1997 to 159 in 2004. Notices of "intent to fine" employers for hiring illegal workers dropped from 417 in 1999 to three in 2004.
And on the rare occasions when the INS or ICE did fine an employer, it often failed to collect the money, citing such horrifying difficulties as that the employer had "moved," the August 2005 GAO report states.
Myers took office on January 4, 2006, and shook things up. She has ordered the agency to file criminal charges and civil lawsuits against egregious violators and the labor contractors that supply them with illegal workers. Fines of $110 to $3,000 per illegal worker may not dissuade a first-time violator, but jail time might.
Myers says ICE prefers to educate employers and save prosecution for egregious violators. The education focuses on how employers should deal with the I-9 form, on which job applicants testify that they are legally eligible to work in the United States.
Resources for employers
Employers never were responsible for verifying the documents by which job seekers "prove" they are legal. That was part reason that the 1986 Immigration Reform and Control Act has been so ineffective.
To combat counterfeit documents, ICE established the IMAGE program, the ICE Mutual Agreement between Government and Employers, by which employers can electronically match job applicants’ Social Security numbers with Social Security Administration records. A mismatch indicates that the worker may be using phony documents, and the employer will be expected to take action.
This electronic matching is called the Basic Pilot Program, and employers who volunteer for the IMAGE program get access to it. If a business follows ICE’s "Best Practices," (link to sidebar 2) it can protect itself from prosecution even if it finds it has inadvertently hired unauthorized workers.
More than 10,000 employers have signed up for the IMAGE program. But it is far from perfect:
The program will not report a mismatch if an illegal worker presents a real ID from a real person whom they are passing themselves off as.
There are 5.6 million employers in the United States, and if many more sign up, ICE may not have the resources to handle it, DHS Justice Division Director Richard Stana told the Senate Judiciary Committee in June.
For those 5.6 million employers, U.S. Citizenship and Immigration Services (ICE’s sister agency, dedicated to services rather than enforcement) "has approximately 38 immigration status verifiers available for completing Basic Pilot Program verifications," the GAO reported. Of its 5,000 investigative agents, ICE headquarters in Washington, D.C., assigned three to the program.
Privacy laws prevent ICE from seeing the Social Security mismatches generated by the IMAGE program. ICE officials say that giving their agency this access could discourage employers from signing up, for fear they would be more easily prosecuted than businesses that do not. ICE says that making the program mandatory would address this complaint. But that creates another problem.
The Basic Pilot Program was funded in fiscal year 2005 with $3.5 million from fees paid by citizenship applicants. The GAO estimates that if the program becomes mandatory, a "dial-up" version would cost $11.7 billion per year—that’s a 334,000 percent increase—and employers would have to pay for it.
The Bush administration wants to amend privacy laws to grant ICE access to Social Security Administration data. But this is sure to face opposition in Congress because of the furor about other federal snooping.
These are just some of the obstacles to reform. And there is no reason to believe the flow of undocumented workers will stop. Fifty-eight percent of the jobs created in the U.S. during the next 10 years will not require college degrees, the Essential Workers Immigration Coalition predicts. Many of these jobs, presumably, could be filled by immigrants.
But the real problem is not just crafting a workplace enforcement program that works, it’s mustering the political will to enforce it. But faced with opposition from both sides of the political spectrum, government’s first instinct may be to do nothing.
In late July, House Republican leaders insisted on 21 more hearings before they can vote on the immigration bill already passed by the Senate.