Employer sanctions for illegal workers scaled back

By Spencer S. Hsu and Kari Lydersen, Washington Post/ Cincinnati Post, June 19, 2006


WASHINGTON - The Bush administration, which is vowing to crack down on U.S. companies that hire illegal workers, virtually abandoned such employer sanctions before it began pushing to overhaul U.S. immigration laws last year, government statistics show.

Between 1999 and 2003, worksite enforcement operations were scaled back 95 percent by the Immigration and Naturalization Service, which subsequently was merged into the Homeland Security Department. The number of employers prosecuted for unlawfully employing immigrants dropped from 182 to four, and fines collected declined from $3.6 million to $212,000, according to federal statistics.

In 1999, the United States initiated fines against 417 companies. In 2004, it issued fine notices to three.

The government's steady retreat from workplace enforcement in the 20 years since it became illegal to hire undocumented workers is the result of fierce political pressure from business lobbies, immigrant rights groups and members of Congress, according to law enforcement veterans. Punishing employers also was de-emphasized as the government recognized that it lacks the tools to do the job well, and as the Department of Homeland Security shifted resources to combat terrorism.

The administration says it is learning from past failures, switching to a strategy of building more criminal cases, instead of relying on ineffective administrative fines or pinprick raids against individual businesses with outnumbered agents. In its current drive, it is seeking more resources to sanction employers, toughen penalties and finally set up a reliable system - first proposed in 1981 - to verify the eligibility of workers. That would allow the government to hold employers accountable for knowingly hiring illegal immigrants.

The Homeland Security Department also is seeking access to Social Security Administration records of workers whose numbers and names don't match, access that privacy concerns have long blocked.

Still, in light of the government's record, experts on all sides of the debate are skeptical that the administration will be able to remove the job magnet that attracts illegal immigrants.

"The claims of this administration and its commitment to interior enforcement of immigration laws are laughable," said Mark Krikorian, executive director of the Center for Immigration Studies, an advocacy group that favors tougher workplace enforcement, among other measures. "The administration only discovered immigration enforcement over the past few months, five years into its existence, and only then because they realized that a pro-enforcement pose was necessary to get their amnesty plan approved."

Angela Kelly, deputy director of the National Immigrant Forum, which supports immigrant rights, agreed that enforcement has been "woefully tiny."

"Why should the public believe it because the government hasn't done it before?" Kelly asked.

In recent months, ICE, which succeeded the INS, has dramatically stepped up enforcement efforts. It won 127 criminal convictions last year, up from 46 in 2004, and obtained $15 million in settlements from an investigation of Wal-Mart and 12 subcontractors last fall, a spokesman said. Comparable figures before 2003 were not tracked, ICE said.

In the past few months, ICE has led several high-profile actions against a Houston-based pallet-services company, Maryland restaurateurs and Kentucky homebuilders, among others. The activity marks a pronounced shift in emphasis, following increasing bipartisan criticism.

However, experts say the linchpin of comprehensive new enforcement plans - developing an electronic verification system to replace paper "I-9" forms used for two decades - is years from being ready. Meanwhile, a cottage industry of document fraud and an explosion of identity theft will continue, they say.

While most of the government's get-tough rhetoric has focused on the southern border, others noted, about 40 percent of the nearly 12 million illegal immigrants living in the United States entered the country legally on visas and simply stayed. That means they probably can be caught only at work.

In an interview, Homeland Security Secretary Michael Chertoff acknowledged the administration's record, but said a combination of carrots and sticks for business can work.

"It would be hard to sustain political support for vigorous worksite enforcement if you don't give employers an avenue to hire their workers in a way that is legal, because you're basically saying, 'You've got to go out of business,' " Chertoff said.

On the other hand, "businesses need to understand if you don't ... play by the rules, we're really going to come down on you. ... That's a very powerful place to stand in resisting people who are going to push back."

Company officials who knowingly employ illegal workers can be fined and, if they engage in a pattern of continuous behavior, face jail time. Housing or harboring illegal workers or laundering money can carry long prison sentences. But the easy availability of fraudulent documents frustrates investigators, as does a law that protects businesses as long as a worker's document "appears on its face to be genuine."

Statistics show the number of fines and convictions dropped sharply after 1999, with fines all but phased out except for occasional small cases. After the Sept. 11, 2001, terrorist attacks, a 2003 memorandum issued by ICE required field offices to request approval before opening worksite cases not related to protecting "critical infrastructure," such as nuclear plants. Agents focused on removing unauthorized workers, not punishing employers.

ICE faced a $500 million budget shortfall, and resources were shifted from traditional enforcement to investigations related to national security. Farms, restaurants and the nation's food supply chain "did not make the cut," said Mark Reed, INS director of operations. "We were pushed away from doing enforcement."

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