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HOW TO ENFORCE LIMITS ON UNDOCUMENTED WORKERS: The Issue The Current Immigration Reform Proposals Leave Out


Friday, Aug. 24, 2001

After years of waiting, the stars are nearly in alignment for reform of the nation's immigration laws. Proposals from the White House, Congress, and the Immigration and Naturalization Service (INS) itself address both the laws and the organization of the agency charged with enforcing them.

There has been considerable attention paid to how the INS will be reorganized, a possible amnesty for illegal immigrants, and how a new guest worker program might be implemented. But there has been little attention paid to the critical question of how, exactly, we will enforce any new limitations on undocumented workers.

Immigration: Law and Politics

Immigration law is, probably inevitably, extraordinarily complex. In addition to naturalized citizens, there are four other types of immigrants in the U.S., only two of which — those with work visas and those with permanent resident status (mostly green card holders) — can be legally employed. In addition, many with work visas stay too long and become illegal. Dealing with this population of immigrants involves the daunting tasks of enforcement, detention, and legal proceedings at the border; processing applications for visas, green cards, and naturalization; finding the illegally employed; deportation; and much besides.

Immigration law and the INS have long been listed in critical condition, but two recent developments have improved the prognosis. On the right, the Republican Party has finally recognized the potential for recruiting Hispanic voters to the GOP. Those voters, as President George Bush knows better than anyone in his party, are considerably more conservative than their political leadership, and can be moved to vote Republican. Immigration, of course, is an issue close to their hearts, and moving toward them on the issue is sound political strategy.

On the left, America's labor unions have finally tumbled to the fact that immigration is their best bet for shoring up their declining rolls. Historically, the unions have objected to expanded immigration on the ground that it took jobs away from Americans. But unionized workers have never lined up for the (frequently seasonal) work that many undocumented workers do. The unions have wisely decided they'd rather switch than fight.

The Sad History of Immigration Law Enforcement

Boiled down, the big questions about immigration involve low-wage work. Relatively few people come to the United States seeking asylum from political persecution (though more would if they could). And not many come to earn millions, though the new economy has seen significant growth in the employment of foreign engineers and programmers. Still, for every software designer from India, there are hundreds if not thousands of farm workers from Mexico. The vast majority of the approximately 300,000 people who come to the U.S. to work illegally every year (estimated to number over 5 million at present) come to do work that earns less than $10 an hour.

Illegal labor in America is so widespread that effective enforcement of the laws in this area is almost inconceivable. As The Economist noted this spring, "Visit any farm in California's Central Valley, any orchard in Florida, any slaughterhouse in Iowa, any restaurant kitchen in New York, or indeed the garden of any middle-class suburbanite not running for political office, and undocumented workers are everywhere."

Moreover, the notion of actually doing anything about this vast illegal market is of relatively recent vintage. Consider: before 1986, being an undocumented worker was illegal, but hiring one was not. Employers had no legal obligation to demand that workers produce evidence of their right to work legally. Even after the massive Reform Act in 1986, which required employers to verify an employee's right to work (on the "I-9" form every worker must fill out), there is no further obligation on the employer other than to make the records available for audit. Accordingly, if an employee presents false documentation to fulfill the I-9's I.D. requirement, nothing happens unless the INS actually comes and looks at the books.

While some of the limitations that hamper enforcement have been lifted, many remain. For instance, there is a huge traffic in false social security numbers among undocumented workers. But the law prevents the free flow of information regarding false numbers between the Social Security Administration and the INS.

These legal restrictions have been made worse by the INS itself. While budgets have always been inadequate, the agency has rarely made good use of what little it had. The INS has, for example, a well-documented habit of telling employers beforehand when they are going to "raid" a farm or factory. The result, unsurprisingly, is that undocumented workers are rarely in evidence when the INS agents come calling.

Even more distressing, America's political leadership actively encourages law-breaking. In 1998, the INS raided onion farms in Vidalia, Georgia, which were well known for employing illegal immigrants. Georgia's Senators, one from each party, were outraged that the INS was enforcing the law just when Georgia was bringing in its highly lucrative onion crop. Under pressure from the Congressional delegation, the INS worked out a deal with the farmers: a ninety-day amnesty for all of their undocumented workers — just long enough to finish the harvest. The immigration laws went eyeball to eyeball with Georgia's economic interests, and the laws blinked.

Mass Illegality and the Process of Reform

The problem of widespread illegal conduct in the face of unworkable laws is not unprecedented. In the nineteenth century, we had precisely this problem when it came to property rights. Easterners owned, according to the laws on the books and the deeds they held, large tracts of western land. But the reality on the ground was that locals occupied, farmed, and controlled that land. These conflicts were almost always resolved in favor of the squatters, whose rights were subsequently formalized by the courts. Prohibition provides a similar example.

In each case, the rule of law was successfully introduced in two phases. The first usually involved some type of amnesty. Western squatters were recognized as legal owners of the land they farmed; Prohibition was repealed.

The second involved establishing a system that permitted effective enforcement. For land, the system involved surveying and deed recording, all of which were strictly enforced. For alcohol, the system involved strict regulation and licensing — including, in many states, government control over the sale of alcohol (which still exists in Maryland today).

Imposing New Reporting Requirements

No matter how many illegal residents are given amnesty and how many will be admitted under a guest worker program if the new proposals become law, the fact remains that any new system requires a viable enforcement mechanism. Otherwise, the reforms will simply have reduced the total amount of illegality without asserting any real control over immigration policy.

Illegal workers are spread throughout every part of the country and every segment of the economy. Enforcement requires visiting businesses one at a time to review records. This has prohibited effective law enforcement.

It is time to consider a reporting requirement for employers. Employers already have to collect the information required by the I-9; they could be required to transmit it to the government as well. Auditing should not be a Herculean physical task, but rather a technological one. The INS should have unfettered access to Social Security information, and should be able to use that information, and its own visa and green card data, for cross-checking — routinely comparing the legal workforce with the actual one.

A reporting requirement would have several desirable effects. First, the mere fact of having to communicate to the government will discourage many employers from knowingly hiring illegal workers. There's a big difference between getting the information and storing it in the unlikely event of an audit, and actually having to send it on.

Second, armed with the right information, the INS will go into the field to enforce the law rather than to go hunting for violations — auditing businesses when, for example, a mismatch between Social Security and I-9 information is caught. At a minimum, complaints about INS agents acting without "probable cause" will disappear. Moreover, deterrence could be drastically improved. If enforcement becomes significantly more effective, then employing illegal workers may become more trouble than it is worth — at least in any job that requires training or orientation; new employees, once trained, might soon be deported or flee.

Our immigration laws should reflect both our rich history and the current realities that many want to live here, that most of those come to make a meaningful contribution to American life, and that some want to come only to do jobs that are important to the American economy. Wherever we draw the line, however, we must also have the ability to deal forthrightly and effectively with all those — employers and employees alike — who decide to cross it.

Barton Aronson is currently a prosecutor in Washington, D.C. Prior to that, he was in private practice in Washington, D.C. and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own.

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