Shift in Congress to Lead to More Uncertainty for Employers

Friday, January 28th, 2011

The new Republican-controlled House of Representatives has shifted its attention and efforts away from attempting to solve underlying immigration workforce issues and providing certainty for employers seeking compliance with I-9 processes.  Instead, its focus is a politically motivated strategy of ratcheting-up worksite enforcement statistics with disregard to the pressure on all U.S. business, both big and small.

In a hint of what Congress will do (and what Congress will not be doing), the Immigration Subcommittee was officially renamed days after the shift in power earlier this month from the “Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law” to the “Subcommittee on Immigration Policy and Enforcement.”  The dramatic shift in the Immigration Subcommittee’s title coupled with this Wednesday’s first Congressional hearing in 2011, reflect a paradigm shift toward a new way of thinking - enforcement against employers for political get-tough points.

Absent from Wednesday’s Congressional hearing on worksite enforcement was any thoughtful discussion about the need for guidance on how to resolve I-9 discrepancies or how much time an employer should be given to resolve any discrepancies and avoid disruptions to their business.

The hearing title itself read like a FoxNews piece with a question mark at the end to plant the idea into viewers’ heads, ”ICE Work-Site Enforcement — Up for the Job?   By simply putting a question mark at the end of the hearing title, the Republican-led majority was trying to suggest that the Obama administration is not up for the job.  Essentially, the hearing was put together to paint ICE and the Obama administration as soft on enforcement and that is exactly how the hearing played out.  It was theatrics… not problem-solving.  This approach of politics over substance should spell concern to employers who in good faith are trying to follow the rules set forth in the Immigration Reform and Control Act of 1986, yet are being punished to score points for politicians.  Employers are not document fraud experts.  However, current immigration law puts companies in a tough spot—they must properly review workers’ documentation but they must walk a fine line to avoid discrimination in their hiring practices when they too thoroughly reviewing workers’ documentation.

For the first time in four years, the U.S. House of Representatives’ Immigration Subcommittee held a hearing Wednesday that focused on the enforcement of immigration laws against employers without considering avenues for employers to legally hire foreign workers. Of the three witnesses invited by the new Republican majority, two were from organizations that have traditionally opposed immigration programs for a legal and stable workforce that includes foreign workers where U.S. workers are unavailable. The majority’s third witness was an official from Immigration and Customs Enforcement (ICE) who, despite explaining that ICE has achieved record-levels enforcement of immigration laws than in previous years, was repeatedly berated by the majority for not doing enough against employers, including more criminal prosecutions against employers who hire workers without proper documentation.

Kumar Kibble, the Deputy Director of ICE, stated:

In fiscal year (FY) 2010, ICE initiated a record 2,746 worksite enforcement investigations, more than doubling the 1,191 cases initiated in FY 2008. ICE criminally arrested 196 employers for worksite-related violations, surpassing the previous high of 135 in FY 2008. ICE also issued a record 2,196 notices of inspection to employers, surpassing the prior year’s record of 1,444 and more than quadrupling the 503 inspections in 2008. ICE issued 237 final orders – documents requiring employers to cease violating the law and directing them to pay fines – totaling $6,957,026, compared to the 18 issued for $675,209 in FY 2008. The total of $6,956,026 last year represents the most final orders issued since the creation of ICE in 2003. In addition, worksite investigations resulted in a record $36,611,320 in judicial fines, forfeitures, and restitutions. Finally, ICE brought a new level of integrity to the contracting process by debarring 97 businesses and 49 individuals—preventing unscrupulous companies from engaging in future business with the government.

Mr. Kibble went on to explain that enforcement efforts against employers is a high priority. Mr. Kibble stated, “Arresting and removing illegal workers must be a part of a strategy to deter unlawful employment, but alone it is insufficient as a comprehensive worksite enforcement strategy. Enforcement efforts focused on employers effectively target the root causes of illegal immigration.”

ICE enforcement of immigration law against employers in the low-skilled sector is not alone. Mr. Kibble further explained:

ICE’s efforts also include identifying, investigating, and penalizing employers who engage in visa or labor certification fraud….Since the start of FY 2009, ICE has initiated 623 cases involving the H and L non-immigrant employment-based visa categories, and obtained 91 criminal arrests, 152 administrative arrests, 103 convictions and a total of $13,845,276 seized.

Despite the fact that ICE has already dramatically increased enforcement of immigration laws against employers, the other two majority-invited witnesses said it was not enough. Mark Krikorian, Executive Director for the Center for Immigration Studies stated:

What has increased in this area is audits of employee I-9 forms and the number and total dollar amount of fines against employers. Such audits and fines are by no means a bad thing, as far as they go. But they don’t go very far.

Mr. Krikorian explained:

[T]he goal is not to fine or arrest every employer of illegal aliens, but rather to ensure that employers are aware that there’s a realistic chance of that happening to them. Only in this way can you create the environment within which illegal aliens are unable to find work and self-deport – a policy called attrition through enforcement.

But Mr. Krikorian took the hearing further by arguing that illegal immigration is not the only problem. He believes that legal immigration, including at the high-skilled level, is bad for the U.S. economy and the U.S. worker. He tried to simplistically explain “that most of the immigration/employment disconnect is caused by legal immigration.”

The third majority witness, Michael Cutler, a retired Senior Special Agent for the former Immigration and Naturalization Service (INS) repeatedly and simplistically reduced the problems this country faces in immigration policy to a concern about terrorism and that employer sanctions could solve this serious national security issue. He failed to recognize the economic needs of this nation for more workers, especially in the high- and low-skilled sectors. Mr. Cutler stated:

An effectively managed employers sanctions program would provide important national security/community safety benefits that would accrue through the implementation of such a program. I ask that you consider that terrorists and criminal aliens often seek employment as a means of embedding themselves in a community. Terrorists and criminals are often described by the jobs they held at the time that they were arrested, jobs that provide them with money, camouflage and mobility.

The witnesses invited by the new majority in Congress fail to see the underlying problems in our country’s immigration laws. The final witness, invited by the new Democratic minority, Daniel Griswold, the Director of the CATO Institute’s Center for Trade Policy Studies tried to correct the fallacious arguments made by the majority witnesses. He stated:

Our policy of relying solely on enforcement of existing law to reduce illegal immigration has failed. This is true for both border and interior enforcement. Since 1992, the U.S. Border Patrol’s annual budget has shot up by 714 percent, from $326 million to $2.7 billion, while the number of Border Patrol agents stationed along the southwest border has grown five-fold, from 3,555 to 17,415. Meanwhile, since the 1986 Immigration Reform and Control Act, U.S. employers have been subject to fines for knowingly hiring undocumented workers. Interior enforcement of those laws has waxed and waned and waxed again over the years. In the late 1990s, the Clinton administration raided hundreds of workplaces and detained thousands of illegal workers. More recently the Bush administration ramped up deportations in 2007 and now the Obama administration has rounded up and deported record numbers of illegal immigrants.

Yet during two decades of more vigorous enforcement at the border and at the worksite, the number of illegal immigrants in the country has roughly tripled, from 4 million to 11 million.

Thus, Mr. Griswold argued:

Instead of wasting resources in a futile effort to root out millions of low-skilled immigrant workers who are productively contributing to our nation’s economy, we could focus our enforcement efforts on apprehending terrorists and other real criminals. Large-scale illegal immigration will end only when America’s immigration system offers a legal alternative consistent with the underlying realities of our labor market.

It is clear from Wednesday’s hearing that this new Congress is less concerned about disruption of businesses who seek straightforward policy guidance from ICE that properly addresses their labor needs and more about theatrics and gotcha-tactics that offers “we’re tougher than you” talking points.

The wrong message from Congress here is that it is not enough for employers to ask for identity and work authorization documents and then to record them on the Form I-9.  Undoubtedly, pressure from this new majority in the Congress will lead ICE to even more aggressive enforcement against employers in low- and high-skilled sectors (despite record-levels of ICE enforcement in the last year) and simultanously lead to fines against employers for document discrimination.  Employers should beware and be prepared.

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