INS Penalty System Falls Down on Job

Employer sanctions, touted 15 years ago as the nation’s key tool for stemming illegal immigration, failed in practice, offering a cautionary tale as the nation once more focuses on the issue of undocumented workers.

Without fanfare, the Immigration and Naturalization Service has slashed its work site enforcement efforts in recent years, resulting in a dramatic drop--as much as 97% over two years--in arrests of workers and fines and warnings issued to employers, government records show.

Remarkably, as the White House and Congress begin a sweeping debate on immigration policy, the sanctions--which were designed to penalize employers for hiring undocumented immigrants--are an afterthought.

“They have not worked,” conceded Doris Meissner, who served as INS commissioner for seven years until last November. “There really is not any reliable way for employers to comply with the law,” which she described as “very, very weak.”

Employer sanctions were undermined by a booming market in phony documents, the needs of employers to fill their job openings, widespread resistance to the creation of a national identification card--and by politics.

U.S. and Mexican officials are scheduled to meet this week in Cabinet-level negotiations on new approaches to immigration, including an expanded guest worker program that would enable many illegal workers to remain in the country, perhaps leading to permanent status for some. Just last week, Democratic leaders urged an even broader approach that would allow undocumented workers of all nationalities to remain in the United States.

Whatever emerges from the process, some experts maintain that it can succeed only with effective implementation at the workplace.

Yet, “neither Republicans or Democrats or a broad range of interest groups is prepared to support an employer sanctions program that actually would work,” Meissner said. As a result, she added, enforcement of immigration laws in the workplace “will have to be addressed from some other angle.”

As crackdowns in the workplace sparked political backlashes in the 1990s, Congress declined to build on the approach, and in 1999 the INS shifted its enforcement focus away from sanctions.

“Nobody wanted to make employers cops. Nobody wanted to make employers forensic document experts,” said Joseph R. Greene, assistant INS commissioner for investigations. “That was in some ways the breakdown of the system.”

Popular ‘80s Approach Proves Ineffective

Today’s system was born in the emotional immigration debate of the mid-1980s, when sanctions became a politically popular counterweight to a broad amnesty for immigrants who had entered the country unlawfully.

While the INS had long patrolled the U.S. border, in the 1980s it faced growing pressure to assert effective control over the U.S. workplace, the obvious lure for millions of illegal immigrants.

The sanctions, passed by Congress in 1986, were a series of civil and criminal penalties--including fines and even imprisonment--faced by employers who failed to comply with the law. Employers were required to document the legal status of their workers and were subject to checks of the paperwork--as well as unannounced site visits by INS agents.

Yet the intensified workplace focus was controversial from the start, sparking Hollywood images of grim INS agents raiding factories filled with desperately poor, unskilled workers.

The immigration agency took on its new mission energetically, bearing down on a water bed factory near San Diego in an early show of force.

“The first day of the trial I walked in--the government had 15 prosecutors and there was me,” recalled Peter N. Larrabee, who was the attorney for Mester Manufacturing of El Cajon in the groundbreaking 1987 case. Ultimately, Mester was fined $3,000 for six counts of hiring illegal workers, in a decision that was hailed by advocates of employer sanctions.

Yet as the INS escalated enforcement, illegal immigrants kept making their way into the American workplace.

When sanctions were first approved, illegal immigrants often were blamed for taking jobs from American citizens who needed them. But as the 1990s progressed and the U.S. unemployment rate fell to depths not seen in 30 years, that theory came under attack. An array of industries, from agriculture to meatpacking to hotels, restaurants and construction, were increasingly reliant on immigrant labor to fill job openings that no one else was applying for.

Employer sanctions “were going against the labor market,” explained Dmitri Papademetriou, head of the Migration Policy Institute in Washington. “People needed the employees, and employees needed the jobs.”

Moreover, the INS was never given the resources to carry out the difficult mission. Today’s number of agents charged with monitoring all U.S. workplaces--1,899 as of June--has been declining in recent years.

To comply with the sanctions law, employers had to determine that a worker’s identification appeared “reasonably genuine,” a relatively easy test that could be fulfilled with various sorts of documents.

But rising concerns that foreign-born job applicants were facing discrimination led Congress in 1990 to ban employers from demanding them to produce INS documents.

While employers risked INS sanctions if they hired illegal immigrants, they risked fines from the Justice Department’s Office of Special Counsel if they violated the legal rights of their employees.

Against this confusing backdrop, a black market in identification papers flourished and, increasingly, companies located outside such immigrant strongholds as California, New York and Texas--found themselves with large cadres of illegal employees.

Michael Satran, owner of Interstate Roofing in Portland, Ore., remembers with some pain the day in November 1999 when INS officials examined the paperwork he had collected for his predominantly Latino work force. Soon after, officials ordered him to fire 76 of his 128 employees, including his foremen and some workers with 10 years’ seniority at his company.

“Everything was done right,” Satran said of his record-keeping. “We didn’t make any mistakes.” Of those workers let go, he said, 56 had managed to get valid Oregon driver’s licenses, according to his own exit interviews with the workers.

Satran was not fined. Rather, he suffered the loss of more than half his work force to nearby competitors. “Every one of [the fired workers] except one went to another roofing company in the Portland area. The other one went to a landscaping company.”

Critics of the sanctions say such stories illustrate the untenable position of employers--squeezed between one part of the law that requires them to hire only legal workers and another part of the law that forbids them from discriminating against the foreign-born.

Just last week, Tropicana Casino and Resort in Atlantic City, N.J., agreed to pay $75,000 in civil penalties for its illegal demands that noncitizen employees provide their official immigration papers.

“Employers are required to walk a very, very thin line,” said Russell L. Lichtenstein, the attorney for Tropicana. The resort was “caught between the proverbial rock and a hard place,” he said.

INS Eases Off Enforcing Sanctions

Such complaints have met an increasingly sympathetic reception from politicians. After INS agents swarmed into the onion fields of Vidalia, Ga., in 1998, arresting 20 illegal workers and sending more scurrying for cover, several members of Congress complained to U.S. Atty. Gen. Janet Reno, as well as the U.S. secretaries of Agriculture and Labor. Efforts in 1999 to target illegal workers in Nebraska’s meatpacking industry, known as Operation Vanguard, prompted a similar backlash.

The same realities now challenge U.S. and Mexican officials as they try to bring order to a system that was overwhelmed by economic forces.

“If you’re the INS, the moral of the story is Congress is telling them not to enforce the law,” said Mark Krikorian, executive director of the conservative Center for Immigration Studies. He would like to see an effective program of employer sanctions.

By 1999, the INS was ready to formalize a new set of enforcement priorities, deemphasizing employer sanctions while making violent immigrants, the smuggling of humans and document fraud top concerns inside the United States.

Since the new policy has taken effect, INS statistics show a striking drop-off in the enforcement of workplace sanctions affecting employers and employees. In 1998, the number of employer fines was 7,115; by last year that figure had fallen to 178. In 1998, the number of workers arrested due to workplace enforcement actions was 13,875. By last year, the figure had dropped to 953.

“You look at the numbers--what you see is the result of that policy,” said the INS’ Greene. But he maintained that if the economy weakened to the point where illegal immigration was harming domestic workers, “resources would be shifted accordingly.”

By last year, even the AFL-CIO--traditionally worried about the effect of cheap labor on its union members--abandoned its support of employer sanctions and came out for an amnesty program. Labor leaders had concluded that sanctions were not deterring illegal immigrants from seeking U.S. jobs. At the same time, the union argued that some employers were exploiting their most vulnerable employees, threatening to report them to INS.

“These employer sanctions worked not to penalize employers, but to penalize workers,” said Eliseo Medina, executive vice president of the Service Employees International Union in Los Angeles.

National Identity Cards Unpopular Alternative

Despite widespread displeasure with sanctions, there was never much support for another measure that might have led to greater immigration control: a national identification card. Technology has made the possibility of a counterfeit-resistant card increasingly plausible. But such a document, which could be issued only to citizens or permanent residents, raises deep fears of the government invading individuals’ privacy.

Meissner said the opposition to such a card is at the heart of the matter: “From a civil liberties standpoint, we’re not comfortable with a single national identification system. That is the core rub.”

Still, observers on various sides of the debate question whether the issue of illegal immigration can be effectively addressed without employer sanctions or some way to ensure that American jobs are filled with authorized workers.

While the goal of a big, new guest worker program would be to bring many undocumented workers into a legal system of employment, the concern is that--without sanctions or some other lever over employers--companies could still face temptation to hire illegal immigrants.

B. Lindsay Lowell, a scholar at Georgetown University’s Institute for the Study of International Migration, worries that an expanded guest worker approach might make those illegal immigrants who do not qualify more vulnerable to exploitation than ever before.

“A large-scale guest worker program without meaningful employer sanctions would be very problematic,” he said.

Greene said that new technologies for identification, if applied to a new guest worker card, might ease some of the headaches caused by false documents in the workplace.

“You can certainly make it harder for the bad guys,” he said, promising that “we’ll be looking at that problem in a very different way in 2001 and 2002 than we did in 1986.”

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Decline In INS Crackdown

The Immigration and Naturalization Service has slashed its work site enforcement efforts, resulting in a sharp drop in arrests, fines and warnings to employers who hire undocumented workers.

Source: INS

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