How Employers Evade Employer Sanctions

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The Immigration 101 series tracks my course on immigration law at Hofstra University School of Law.

This is the second of three articles on how employer sanctions work. Employer sanctions were passed in 1986 to “go after employers” hiring undocumented immigrants. In the first installment, I looked at the great unlikelihood of an employer ever being punished for violating the law. Now I want to expose the strategies, legal and illegal, that employers use to limit their exposure.

Employer sanctions does not penalize an employer for hiring an “illegal alien”. Punishment is only meted out for hiring a person without proper documents. Employer will not be penalized for hiring an undocumented alien so long as the employer does not know he is undocumented and the worker presents an identity document and a document showing work authorization. This provision has led to a massive expansion of fake document mills nationally. In some cases, employers have referred potential job applicants to these mills for fake documentation. Employers hiring folks with these documents are held harmless under the employer sanctions laws unless it can be proven that the employer knew the person was undocumented.

A second approach to avoiding employer sanctions is more sophisticated.

When I was young, back before sanctions, it was common for the cleaning crews at offices and in factories to work for the owner of the building. Now almost all that work is done by contractors. Why is that? Because factory and office owners are typically big corporations which don’t want employer sanctions liability. So they contract out work formerly done by their own employees. This way employer sanctions liability falls on the contractor, rather than on the corporation.

This practice has become so widespread that last year when ICE raided a factory, they found that all the factory hands were working for a contractor, not for the factory owner!

So, employer sanctions have led to the proliferation of fake document mills and sophisticated schemes to insulate big corporations against liability and bad publicity, but they have not slowed illegal immigration.

In the next installment, we’ll look at the impact of sanctions on Latinos and Asian-Americans legally authorized to work in the U.S.


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