Arrests of undocumented immigrant workers increased in fiscal year (FY) 2019 compared to the previous year, even as immigration worksite investigations dropped slightly, according to U.S. Immigration and Customs Enforcement (ICE) data.
ICE's focus on workplace enforcement has intensified during the Trump administration. The agency opened 6,812 new workplace investigations in FY 2019, just under the 6,848 investigations started in FY 2018 but significantly more than the 1,701 begun during FY 2016.
Worksite arrests have increased significantly. ICE made 2,048 administrative arrests in FY 2019, primarily of undocumented immigrant workers, up roughly 500 from the year before.
"Administrative arrests are for civil violations of U.S. immigration law, such as illegal presence," explained Alex Nowrasteh, a senior immigration policy analyst at the Cato Institute in Washington, D.C. "The Trump administration is increasing immigration enforcement across the board but from fairly low levels in 2016. Although the number is way up from its low point of 106 in 2016, it's still less than half of the peak in 2008 when George W. Bush's ICE arrested 5,184 people at worksites."
ICE made 779 criminal arrests for violations such as identity fraud in FY 2018. The number of criminal arrests in FY 2019 has not yet been released.
Derek Benner, ICE acting deputy director, said his agency is committed to helping protect jobs for U.S. citizens and others who are lawfully employed, reducing incentives for illegal immigration, and eliminating unfair competitive advantages for companies that hire workers who are in the U.S. illegally.
The FY 2019 numbers show the agency's ongoing commitment to meeting the administration's goal of prioritizing worksite enforcement. Thomas Homan, the former acting director of ICE, told SHRM Online in 2017 that the agency intended to at least quadruple the number of annual worksite inspections. ICE has also encouraged employers to take part in the government's voluntary compliance program, in which organizations can be certified for complying with the law.
In August last year, ICE detained approximately 680 workers at seven food processing plants across Mississippi in the most high-profile enforcement action of the year. By October, 99 employees had been indicted on criminal charges, according to a spokesman for the U.S. attorney's office.
The enforcement action brought up a long-standing question: Where are the charges against the employers for hiring unauthorized workers? To date, no charges have been brought against the companies, owners or managers involved in the Mississippi raids. And the number of employers and managers arrested for hiring undocumented immigrants has fallen each year since 2016. ICE made 40 employer arrests in 2019, down from 72 in 2018.
Building a case against employers and managers is difficult and takes time, but the main reason for the lack of employer prosecutions is that an employer violates the law only when it knowingly hires or employs undocumented workers.
"The presence of unauthorized workers does not necessarily mean that the employer committed a crime," said Julie Myers Wood, CEO of investigative and compliance consultancy Guidepost Solutions and former director of ICE under President George W. Bush. "It must be shown that the employers knowingly engaged in the activity. But given the prevalence in fraudulent documents and the gaps in E-Verify, it can be very hard for employers to ensure they have an authorized workforce."
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Civil penalties for employers that hire or continue to employ undocumented workers range from as low as $573 per unauthorized employee for a first offense to $22,927 per employee for second and third offenses. Employers can face criminal charges, and owners and managers can face up to six months in prison if a pattern of hiring unauthorized workers is established.
Employers can avoid big fines by developing a comprehensive I-9 compliance program, which should include training, self-audits and an investigation-day action plan.