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Employer arrests down substantially, while administrative fines have increased
Workplace audits and employer arrests for the hiring of unauthorized workers have dropped since fiscal year (FY) 2013, according to government data.
Immigration and Customs Enforcement (ICE), the agency responsible for immigration-related worksite enforcement, conducted 181 workplace audits and brought charges against 27 employers in the first five months of FY 2015, a significant decline from FY 2013, when more than 3,000 companies were audited and 179 employers were arrested.
“The [Obama] administration’s near discontinuation of worksite enforcement means that employers now face very little risk in hiring illegal workers and have little incentive to abide by the law,” said Jessica M. Vaughan, director of policy studies at the Center for Immigration Studies, based in Washington, D.C.
Looking at the issue through a wider lens, ICE’s worksite enforcement represents a fractional impact to the estimated 8 million plus unauthorized workers in the U.S. labor force, according to a new report from the Congressional Research Service. The report points out that the number of final orders imposing civil penalties and the amount of fines have gone up since FY 2006, but the number of orders is “very low” in relation to the estimated size of the unauthorized workforce or the potential number of employers employing these workers. “When considered in this context, ICE’s worksite enforcement program can seem quite limited,” said Andorra Bruno, a specialist in immigration policy with the Congressional Research Service and the author of the report.
Policy Shift Away from Workplace Raids
The Immigration and Nationality Act makes it unlawful for an employer to knowingly hire, recruit, refer for a fee or employ an undocumented worker who is not authorized to be employed.
The federal government’s approach to enforcing the law has shifted over the years from conducting high-profile worksite raids during the Bush administration in favor of what some call “virtual raids.”
One of the first immigration enforcement policy changes undertaken by the Obama administration in 2009 was to cease raids on employers, and instead rely primarily on I-9 paperwork audits, Vaughan said. “When done strategically, these audits, together with employer compliance programs and complementary enforcement activity, did help at first to create an improved climate of employer compliance, although they rarely resulted in consequences for the illegal alien workers, who remained free to seek work elsewhere as ICE agents were generally prohibited even from interviewing the workers, much less arresting them,” she explained.
The agency describes its 2009 policy shift on worksite enforcement as prioritizing “investigations involving national security, public safety, or those associated with our critical infrastructure and key resources sectors.” It said the focus was directed towards employers that “utilize unauthorized workers as a business model,” “mistreat their workers,” or “engage in human smuggling or trafficking.”
ICE also has placed increased emphasis on compliance and outreach, such as the ICE Mutual Agreement between Government and Employers program as a way to reduce unauthorized employment, Bruno said.
Inspections, Arrests Decline
ICE records indicate that after an initial major increase on worksite paperwork audits, such activity has been in decline since FY 2013. The number of audits jumped from 503 in FY 2008 to 1,444 in FY 2009 before rising to a peak high of 3,127 in FY 2013, and then dropping to 1,320 in FY 2014.
“This year, ICE is on track to complete fewer than 500 audits,” Vaughan said. “Fewer audits means that there have been fewer sanctions against employers.”
The number of criminal arrests for illegal hiring and other criminal violations made in worksite enforcement operations increased each year from FY 2003 to FY 2008, from 72 to 1,103.
In FY 2009, the number of criminal arrests plummeted to 410 before rising back up to 713 in FY 2011. Since FY 2011, there has been a steady decline in the number of arrests.
The representation of managerial employees including owners, managers or human resources personnel among those criminally arrested has increased since 2009, the data show.
Between 40-50 percent of the individuals criminally arrested in connection with worksite enforcement investigations were managerial employees in FY 2012 and FY 2013, up from 28 percent in FY 2009.
Administrative Fines Increase
ICE has increasingly used administrative penalties as an enforcement tool. The agency ordered 52 companies to pay fines totaling over $1 million in FY 2009. Those numbers have increased to 642 employers receiving fines in excess of $16 million in FY 2014.
“Despite the increases in recent years, however, the number of final orders for civil money penalties remains very low relative to the number of U.S. employers,” Bruno said.
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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