Employers Welcome New INS Policy, but Remain Skeptical
Thirteen years after employers were made legally responsible for knowing the immigration status of their workers, the agency charged with enforcing the law concedes it has made mistakes and needs to work harder at building relationships with business owners.
Under a new enforcement policy announced last week, the Immigration and Naturalization Service said it will reduce disruptive work-site raids and rely more on investigations of problem employers, particularly those who appear to be colluding with immigrant smugglers.
At the same time, the agency said it will try to help well-intentioned employers and back off from the practice of issuing citations for minor paperwork violations.
“We recognize that 80% to 85% of employers really want to comply with this law, so let’s help them do that,” said Joe Greene, an INS district director in Denver who led the one-year overhaul of the policy. “There’s a whole pool of goodwill out there that we haven’t been able to tap.”
That’s good news for business owners, many of whom have come to view the INS as an ineffective, nit-picking adversary. But after more than a decade of mutual suspicion, many remain skeptical.
“In the eyes of the employers, there really isn’t a partnership there,” said Josie Gonzalez, an attorney for the California Restaurant Assn. With high turnover and heavy reliance on an immigrant work force, the restaurant industry is among those most affected by the so-called employer sanctions. And as Gonzalez pointed out, in today’s tight labor market, the INS may be particularly unwelcome.
“They still have a mission to ferret out undocumented workers,” she said of the federal agency. “They can’t help you find qualified workers to fill those jobs.”
Greene agreed it will take time for the agency to change its image in the business community and emphasized the policy announced last week marks the beginning of a five-year strategy.
He was short on specifics of how that policy will affect individual employers, but said for a start, INS agents may become more accessible, in the same way that community police officers get to know members of a neighborhood.
“It may be as simple as building a one-on-one relationship, so that you have a name instead of a faceless bureaucracy,” Greene said.
That change will require more staffing, however, and Greene said the agency has not yet made a request for the extra help. “We did not want to come out [immediately] with a big resource request,” he said. “We want to gradually implement this thing and show it can work.”
In the meantime, employers complain they can’t get through to the agency when they need advice, particularly in the midst of the complex hiring process.
“Have you ever tried to call INS?” asked Joe Mendivel, human resource director for Lance Camper Manufacturing Corp., which runs a 300-employee assembly plant in Lancaster. “You never get through. You could leave your business line tied up all day and still get nothing.”
Mendivel said his company sought to protect itself from INS sanctions by erring on the side of caution when screening job applicants. But as he recently learned, that approach carries its own set of perils.
In January, Lance Camper was fined $5,000 by the Department of Justice’s Civil Rights Division for asking a U.S. citizen job applicant for too much documentation. When the applicant returned with the requested documents, the job had already been filled.
“We tried to be real careful, and in our caution, we did make a mistake,” said Mendivel. “There’s a fine line. You could be overzealous or too lackadaisical. Either way, you can get in trouble.”
That apparent conflict is a major source of frustration for employers, who view the immigration paperwork, known as the I-9 form, as one more burden placed on them by the government.
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Deceptively simple, the three-page form lists 29 documents that job applicants can use to prove their right to work. They range from a familiar California driver’s license to obscure asylum papers with expiration dates and extensions. Employers must keep the forms on file for at least three years after the hire and make them available to INS inspectors within three days of receiving a notice to audit.
“It’s a nightmare. It’s absurd,” said Roxana Bacon, a Phoenix immigration attorney who represents agricultural and high-tech employers. “INS said it should take a minute to fill out, but it is the most confounded, difficult piece of paper around. It doesn’t make any sense. It’s not intuitive.”
One measure of the complexity: An I-9 advice book--”The Immigration Employment Compliance Handbook,” published by West Group--has grown from about 80 pages in 1989 to more than 400 today, as statutes and case law accumulated. Los Angeles immigration attorney Carl Shusterman said the book grows by 10% a year.
What may be most frustrating to employers is that for all its complexity, the law appears to be foiled by the ready availability of high-quality fake documents--which in many cases are good enough to fool experienced immigration attorneys. Employers are not held responsible for accepting false documents if they appear to be valid on their face.
“The fact is, with all these documents available, it is kind of a joke,” said Shusterman, who once worked for the INS. “But it’s still burdensome to employers who have to keep up with the law.”
One hope for the future, which could eliminate some of the I-9 pitfalls, is a dial-in verification system being tested by the INS in Los Angeles and several other job centers. Under that system, an employer phones in information from an immigration document, such as the number from a resident alien card or a refugee travel document, and the INS system immediately tells whether it is valid.
The phone system eliminates subjective decisions by the employer: either the number is good or it’s bad. But because it can only be used to check immigration documents on file with the INS, the system won’t catch undocumented immigrants who pose as U.S. citizens, using fake Social Security cards.
Several employers who use the dial-in system said they were happy with the results. “It really eliminates the guesswork,” said Craig Gosselin, vice president and general counsel for Vans, a tennis shoe manufacturer in Santa Fe Springs, which signed up for the system after several INS audits disrupted its assembly work force.
However, relatively few employers have volunteered for the pilot program, perhaps viewing it as one more responsibility in a hiring process that has become increasingly complex.
“It’s more and more every year, not only with this but everything else that comes through the government,” said Steven Soto, director of the Mexican American Grocers Assn., which will place anti-job discrimination posters in thousands of California stores this year under a Justice Department grant.
Soto said small-business owners in ethnic communities are especially hard hit because few have in-house counsel or human resource departments. “Just asking the wrong question can result in penalties,” he said. “But it is a law, and we need to comply, and we’re trying hard to do it the right way.”
For all the concern by employers, however, chances are slim that their hiring practices will even be audited, let alone sanctioned by the INS or the Civil Rights Division.
Last year in the Los Angeles district, only 53 businesses were notified they would be fined by the INS for I-9-related problems. Often those fines are eventually reduced or waived.
In the same period, the Office of Special Counsel for Immigration-Related Unfair Employment Practices, which enforces the anti-discrimination provisions of the law, fined only two Los Angeles-area employers for asking for too many documents or otherwise appearing to discriminate against certain job applicants.
Special Counsel John Trasvina said his office is working with INS to ensure that the agency’s new enforcement policy doesn’t push employers into discriminatory behavior. “We’re trying to make sure the INS provides a balanced message,” he said.
And, like the immigration service, Trasvina said he hopes to develop more cordial relationships with employers. “We aren’t out there to catch them,” he said. “We’re out there to train them and help them.”
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Times staff writer Nancy Cleeland can be reached via e-mail at nancy.cleeland@latimes.com.
(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)
Information, Please
For more information about employer sanctions, to arrange for training seminars or for help in filling out I-9 forms, the following employer hotlines are available:
Immigration and Naturalization Service: (800) 357-2099.
Web site: www.ins.usdoj.gov
Office of Special Counsel: (800) 255-7688.
