¶ … Policy Analysis: Interior Enforcement of the Employment of Immigrants Criminal Justice

History of the Problem and Need for Change

Problem Scope.

In 2004, three U.S. companies were issued penalty notices by the U.S. Department of Homeland Security (DHS) for knowingly employing unauthorized workers (Porter, 2006). At the time, demographers estimated that six to seven million illegal immigrants were employed in the America -- that number is approximately equivalent to 5% of the U.S. workforce (Porter, 2006). In 2007, DHS reported that 275,000 non-citizen immigrants were caused to leave the U.S. By DHS action (Lee, 2009). In 2009, the unauthorized immigrant population was believed to stand at approximately 12 million (Lee, 2009). In April 2009, the Secretary of the Department of Homeland Security, Janet Napolitano, instructed United States Immigration and Customs Enforcement (ICE) to intensify targeted investigation of employers who knowingly hire unauthorized workers. During 2010, ICE broke its record for criminal prosecutions related to the unlawful hiring of immigrants for purposes of employment. In 2009, 114 business owners, employers, managers and/or supervisors were charged with breaking the law, and in 2008, the number was 136 -- but in 2010, this number rose to 180. Overall, the ICE had a greater presence at sites of employment in 2010, as it completed more than 2,200 I-9 audits, and this was up from about 1,400 in 2009.

Potential Causes of the Problem & Previous Interventions

Policy Slippage.

Employers are fundamental drivers of immigration policy, and they tend to be quite unhappy with the provisions for fines and penalties against employers who hire unauthorized workers that are the lynchpin of current immigration law. A pivotal problem with the policies enacted to date is that policymakers have tended to underestimate and misunderstand the business impact of enacted and proposed state and federal legislation.

While scholars have offered rich and textured analyses of the ever-expanding grounds for removing immigrants, surprisingly little attention has been paid to immigration screeners - the persons and institutions that assist the DHS in identifying candidates for removal. [An] under-theorized site of immigration screening and one particularly problematic set of immigration screeners: the workplace and our nation's employers. (Lee, 2009)

This procedural analysis works within the established theoretical framework to identify and propose a potential solution for addressing the non-compliance issues of many American employers who continue to hire, and facilitate the hiring of, unauthorized workers.

No-Match Letters. On July 10, 2009, Janet Napolitano announced plans for the DHS to rescind the 2007 Social Security No-Match Rule. The No-Match Rule makes provision for letters to be sent to employers when W-2 forms have been submitted that do not match the records held by the Social Security Administration (SSA). The intent of the regulation is to provide clarification to employers about their obligations. Beginning in 1994, the SSA sent no-match letters to employers exhibiting patterns of non-compliance with the Immigration Reform and Control Act of 1986 (IRCA). IRCA prohibits employers from "knowingly" employing aliens who are not authorized to work in the U.S. Employers questioned whether receipt of a no-match letter was actually "constructive knowledge" that an employee was unauthorized to work in the U.S. This policy void permitted employers to take little or no action following receipt of the letters.

E-Verify System. A new system has been instituted by DHS to monitor and enforce workplace practices related to unauthorized workers. A "more modern an effective E-Verify system" (Carafano, 2009), has been implemented that facilitates the process of instantly checking the work eligibility status of job applicants. E-Verify uses a secure online system to triangulate the data from DHS databases, I-9 forms submitted by employers for planned hiring, and SSA databases (Carafano, 2009). Employers are not charged for use of the service, however, they are responsible for providing infrastructure and personnel to use the system. (Carafano, 2009). On the heels of the implementation DHS announced "the Administration's support for a regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization" (Carafano, 2009). Use of E-Verify is required by the federal government for all employers performing work under federal contracts, but voluntary for employers who are government contractors in only 10 states, and in three states, all employers are required to use the system.

Westat, a consulting firm hired to evaluate the performance of the E-Verify system, reported that 96% of the time, the system provided accurate answers (Edwards, 2010). According to the Westat assessment, employers did not perceive the system as burdensome, and out of the 104 employers surveyed, 94 reported...

A fundamental problem with the E-Verify system has been that identify theft permits about half of illegal immigrants -- which is 54%, according to Westat -- from being properly screened by the system (Edwards, 2010). According to Westat, "Many unauthorized workers obtain employment by committing identity fraud that cannot be detected by E-Verify" (Radnofsky & Jordan, 2010). United States Citizens and Immigration Services (USCIS) has attempted to address the problem of fraud by including in the E-Verify system photos of workers on green cards and immigrant work authorization documentation (Edwards, 2010). Barring some truly sophisticated forgery, use of photos helps prevent immigrant workers from using the names, dates of birth, and immigration work numbers that don't belong to them. In addition to the photo screening tool, DHS planned to add additional databases and "a monitoring and compliance branch to detect identity fraud" (Radnofsky & Jordan, 2010).
Identify Relevant Stakeholders & Conduct Systems Analysis

Workers and employers. The monitoring and compliance branch is being implemented none too soon, as expert say that selling identities stolen from U.S. citizens to prospective workers who are unauthorized to work in the U.S., according to U.S. Attorney Edward J. Tarver, is "a rapidly growing problem across our country" (Jordan, 2011). On April 13, 2011, three restaurant managers employed by McDonald's Corporation in Savannah, Georgia, were charged with selling to identification documents belonging to U.S. citizens to unauthorized workers. According to federal authorities, the arrest points to "the risks employers are increasingly taking to mask the hiring of illegal immigrants" (Jordan, 2011). ICE special agent-in-charge, Brock Nicholson, said that as the federal government's "ability to investigate becomes better, [business enterprises wanting to hire unauthorized workers are developing "more sophisticated methods" to beat the E-Verify system. Many employers look the other way when identity theft is suspected. The Savannah case and similar incidents "could be indicative of a new trend" signaling increased incidents of identity fraud (Jordan, 2011).

The terrorist attacks of 9/11 brought about a policy change with regard to the enforcement of immigration regulations in the workplace. The federal government, appropriately focused on preventing other attacks, limited workplace immigration enforcement to what is considered to be "critical infrastructure" (Porter, 2006). Places with particular vulnerability to terrorism, such as airports and nuclear power plants, came under additional scrutiny, and enforcement in other venues was effectively diluted. In peaceful times and prosperous times, too, enforcement appeared to diminish. "Even in the late 1990s when the economy was booming and labor markets were tight, the INS virtually stopped looking for illegal immigrants in the workplace" (Porter, 2009). This trend has reversed in the last several years in concert with the economic fluctuations that tend to put the spotlight on immigrant workers, authorized and unauthorized alike. The number of I-9 audits has risen considerably, criminal prosecution of employers has increased noticeably, and the use of fraudulent identification has become blatant.

Identify Barriers to Change & Supports for Change

Gordon H. Hanson, a University of California at San Diego economist, argues that the ineffective approach to addressing the problems of unauthorized workers in the U.S. is the result of competing interests. Critical to the inability of the U.S. To create effective solutions for the problem, Hanson suggests, is that "Employers feel very strongly about maintaining access to immigrant workers, and exert political pressure to prevent enforcement from being effective. While there are lots of groups concerned about immigration on the other side [of the argument], it's not like their livelihood depends on this" (Porter, 2011). The fines for violations related to hiring unauthorized workers can be very low -- as little as $275 per worker -- and fines are often negotiated downward by businesses. An incident in 1998, arguably before the 9/11 terrorists attacks, found a Senator and four members of the House of Representatives officially chastising the INS after they raided onion field during harvest time. The essence of the sharp criticism aimed at INS was that the agency was hurting Georgia farmers by their action. Clearly, there is a solid bloc of stakeholders that do not want the federal government to interfere with what they see as economically essential and culturally acceptable hiring practices.

On the flip side, the FBI discovered in April of 2011 that false Social Security cards had been sold to illegal immigrants by a 29-year veteran SSA worker for between $2,500 and $5,000 a piece. False Social Security cards are plumb; identification stolen from the wallets and purses of U.S. citizens are likely to be considerably cheaper.…