U.S. Immigration and Customs Enforcement (ICE) has quietly shifted its worksite enforcement strategy since 2009, replacing raids and roundups with records audits.
Under the Obama administration policy, ICE is netting a far larger group of employers than in the past, resulting in thousands of firings and millions in fines levied but stirring up controversy for relaxing deportations of the identified illegal workers.
Since President Barack Obama took office, ICE has conducted audits of employee files at more than 2,900 companies, debarred 105 companies and 81 individuals from doing federal contract work, and issued more than $6.4 million in fines on businesses that hired unauthorized workers, according to official figures.
The change in worksite enforcement policy has not meant fewer deportations as a whole. According to The Washington Post, the Obama administration is deporting record numbers of illegal immigrants, with ICE expecting to deport about 400,000 illegal immigrants during the 2010 fiscal year. This total is nearly 10 percent above the Bush administration’s 2008 sum and 25 percent more than were deported in 2007. According to ICE, the increase has been partly a result of deporting illegal immigrants picked up for other crimes and expanding the search through prisons and jails for illegal immigrants already in custody.
Unlike the former worksite raids that led to arrests and deportation, the "silent raids," or audits of companies’ records by federal agents, usually result in firings. Just 765 undocumented workers have been arrested at their jobs in 2010 through early summer, compared with 5,100 in 2008, according to Department of Homeland Security figures.
The audits force businesses to fire every illegal immigrant on the payroll, not just those on duty at the time of a raid. An employer who fails to do so risks prosecution. The audits make it much harder to hire other unauthorized workers as replacements.
In a July 1, 2010, speech on immigration reform, Obama explained that the audits were part of a two-step immigration policy, promising tough enforcement against illegal immigration in the workplace and at the border.
“Businesses must be held accountable if they break the law by deliberately hiring and exploiting undocumented workers … [I]f the demand for undocumented workers falls, the incentive for people to come here illegally will decline as well,” the president said, adding that the approach would pave the way for a legislative overhaul to give legal status to the millions of illegal immigrants in the country.
“We are going after the root cause of illegal immigration and getting rid of the culture of compliance among employers,” said Matthew Chandler, a spokesman for ICE.
Criticism
Critics of the worksite audit policy are especially incensed by the lax deportations of illegal immigrants, claiming that those illegal workers are simply moving to different jobs elsewhere.
“Even if discovered, illegal aliens are allowed to walk free and seek employment elsewhere,” said Sen. Jeff Sessions, R-Ala. “This lax approach is particularly troubling,” he said, “at a time when so many American citizens are struggling to find jobs.”
“The Obama administration’s continued blind-eye approach to illegal immigration only undermines the ability of citizens and those in the United States legally to find work,” echoed Matt Mayer, visiting fellow at The Heritage Foundation and former U.S. Department of Homeland Security official.
“President Obama should secure the border, enforce the laws on the books and reform our current visa system,” Mayer told SHRM Online.
For all the political ballyhoo, the shift in immigration enforcement should not alter HR’s recordkeeping and employment practices.
“The shift in policy will have no impact upon employer liability for Form I-9 paperwork violations, knowing hire or continuing to employ violations, or possible prosecution for harboring and related crimes,” Mary Pivec, an immigration attorney with Keller and Heckman LLP in Washington, D.C., told SHRM Online.
Illustrating that essentially nothing has changed from an HR point of view, Pivec said employers are continuing to receive substantial fine notices based on the results of forensic I-9 audits, ICE continues to attempt to turn workers into confidential informants, and rehiring any worker who has been terminated in response to an ICE Notice of Suspect Documents is still risky business.
Along with expanding the net of I-9 audits, ICE continues to promote E-Verify and the ICE Mutual Agreement Between Government and Employers (IMAGE) education and training program to help employers comply with the law.
Roy Maurer is a staff writer for SHRM.