“Let’s Go After the Employers”

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The Immigration 101 Series tracks my course on Immigration Law at Hofstra Law School.

Many of my students are sympathetic to undocumented immigrants. After all, the immigrants came here to work to support themselves and their families. But the students are not very supportive of their employers. They see them as the real evildoers here. I often hear them say “We should go after the employers, not the aliens”.

Good enough. Let’s look at the current program for “going after the employers” and see if it has been effective or not.

Employer sanctions were passed into law in 1986. For the first time immigration enforcement, formerly the sole province of the Federal government, was outsourced to employers.

You probably encountered “employer sanctions” the last time you applied for a job. You had to fill out an “I-9” form and show your employer some ID along with proof you were authorized to work. Maybe you presented a driver’s license and a social security card or U.S. birth certificate.

With hundreds of millions being spent every year by American employers to implement the law, the question is, has it been effective? You would think not, at least acccording to the anti-immigrant folks. They correctly point out that when the law was passed, there were 3 million undocumented immigrants and today there are 12 million. If employer sanctions worked, would the number of undocuments have increased so rapidly?

Now in 2008, responding to pressure from the right wing of his party, George Bush took a widely publicized step of “toughening” sanctions by increasing the fines for hiring the undocumented. This was widely hailed by immigrant haters until they actually read the official Federal Register announcement of the fine increase. In fact, the increase was just a cost of living adjustment.

The President can raise employer sanctions fines to keep up with the rate of inflation. Clinton had raised them in the last year of his presidency, but Bush, currying favor with business,  did not raise them at all. So when he finally was pushed into hiking them, he was really just restoring them to what they were in Clinton-era dollars. Not much of a get tough policy at all!

To give you some sense as to how the press releases around the fine increase were much ado about nothing, The minimum fine for a first offense went from $275 to a far-from-awe-inspiring $375. Anyone really think this would persuade an employer hiring the undocumented to change his evil ways?

And, anyway, most employers who violate the sanctions law know that their chance of getting caught is slim. Migration Policy Institute published a report several years ago showing that, throughout its quarter century history, the employer sanctions law has rarely been enforced. During the 1990s, for example, only about $2.5 million dollars a year were collected in fines from employers for immigration violations. That’s an average of just $50,000 per state! Think a labor-strapped boss is going to close up shop rather than face the wrath of the immigration cops? He knows it is unlikely that they will come knocking. In a typical year, fewer than 1,000 employers nationally are audited for employer sanctions violations.

Employer sanctions have worked in only one area.

Employer sanctions have been extremely successful in derailing the careers of anti-immigrant politicians. Most famously, California Gov. Pete Wilson revived his flagging career by going after immigrants in the mid-1990s. However, while he thought immigrants were a danger to his country, he apparently did not think them a danger to his child. He was caught using an illegal nanny. Similarly, anti-immigrant Republican candidate for the Senate from California, Mike Huffington, the formerly straight former husband of the formerly conservative Ariana Huffington, was exposed as an employer of the undocumented. This year both anti-immigrant rivals in a Republican primary race in Pa. share a history of employing immigrants who have not yet been recognized as employment authorized by the Department of Homeland Security.

Part 2 of this series: How employers evade sanctions

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Patrick Young blogs daily for Long Island Wins. He is Director of Legal Services at CARECEN and Special Professor of Immigration Law at Hofstra University. Pat is also a student of immigration history and the author of The Immigrants' Civil War.

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