Agricultural Personnel Management Program
University of California

3/2/03  News Report -- The Courier-Journal (Kentucky)

WASHINGTON -- Arrests of undocumented workers and investigations of businesses that hire them have dropped drastically since the late 1990s, Immigration and Naturalization Service records show.

Fines against employers who hire undocumented workers also have declined, according to the records.

Doris Meissner, head of the INS during the Clinton administration, said the decreases were the result of a lack of money and manpower, as well as a shift in policy in 1999 that put emphasis on smugglers and undocumented immigrants with criminal records.

"There never was any measurable impact on deterring the flow of illegal immigrants," she said. "There are 8 million employers in the United States, and the INS had less than 2,000 agents at best."

Some say the lack of enforcement is well known among immigrants.

Illegal immigrants "know that once you get past the thin, green line of the Border Patrol agents on the border, you're home free," said David Ray, spokesman for the Federation for American Immigration Reform, a Washington-based group that advocates allowing less immigration. "From our point of view, interior enforcement is dead and buried."

Indeed, many recent Hispanic immigrants are undocumented. The INS estimated there are 7 million illegal immigrants nationwide, but experts think the number could be twice that.

Kentucky and Indiana have seen similar dropoffs in enforcement. Shelby County, which has the second highest percentage of Hispanics in Kentucky, has seen few INS roundups of undocumented workers over the past several years, the most recent one in January.

Investigations of businesses also are rare, said Jerry Phillips of the immigration office in Louisville. INS, which was dissolved and split into three bureaus yesterday, is now part of the Department of Homeland Security.

Phillips said the INS conducted a "couple" of investigations a year into employers who might have hired undocumented immigrants.

Such probes in Indiana were even rarer, said the officer in charge of the immigration office in Indianapolis.

"I can't think of a case in the last couple of years," said Donald Ferguson. Neither office could provide specific numbers on arrests or investigations of businesses.

Six Indiana companies were fined in 1992, compared with three in 1999 and none since then. That is based on an analysis of a list of companies provided by the Chicago immigration office and a separate INS database obtained by the Center for Immigration Studies, a Washington-based group that advocates lower immigration but better treatment of those who are admitted.

In Kentucky, total companies fined peaked at 29 in 1992. Two years later, 13 companies were fined, and in 1999 only one was penalized, the CIS database indicates.

Drops in enforcement nationally have also been steep. According to INS records based on a federal fiscal year from Oct. 1 to Sept. 30, employer investigations peaked at 7,788 in 1998. The agency closed 1,595 such cases in 2001. The number of employers fined has declined from a high of 1,063 in 1992 to 78 in 2001. Arrests at workplaces also have fallen precipitously, from 17,552 in 1997 to 418 in 2001.

Aiding the war against terrorism became the chief focus of the INS after the Sept. 11, 2001, terrorist attacks.

Few argue that employer sanctions have been much of a deterrent for those determined to come to America for a new life.

Limits Acknowledged: Enforcement reflects priorities, staffing

Former Sen. Alan Simpson, R-Wyo., a chief author of the 1986 Immigration Reform and Control Act that included sanctions against employers, said the biggest problems facing enforcement of the law are fake documents.

"You have to have some kind of more secure identifier (for noncitizens)," he said. "I can go down the street in Denver 50 yards and get a card."

Former U.S. Rep. Ron Mazzoli, one of the co-authors of the 1986 law, said the law "hasn't done the job we hoped it would do."

"The American people know a lot of these workers are essential," said the Louisville Democrat, who teaches law at the University of Louisville.

Roberto Suro, director of the Pew Hispanic Center in Washington, D.C., agreed. "It's not a law anybody wants to enforce, and it never has been" enforced, he said.

Undocumented immigrants constitute a relatively small portion of the nation's work force. Numbers are difficult to come by, however. In a sample of the nation's employers in 1997, the INS calculated that about 195,000 employers, or about 3 percent, hired undocumented workers.

But a Department of Labor survey of agricultural workers showed that undocumented immigrants made up more than a third of the agricultural work force and were employed in significant numbers in the construction, garment and food industries.

The INS investigated a tiny number of businesses believed to employ undocumented workers -- less than 1 percent in fiscal 2001, according to the agency's data.

About half of the undocumented immigrant population overstayed the limits on their visas, but the Department of Justice's Office of the Inspector General reported in November that "there are many gaps in the INS's ability to identify (those) who are ineligible to remain in this country." That was five years after a similar assessment, during which the INS "has made little progress," the Inspector General's Office concluded.

Immigration officials insisted they have gone after employers who were exploiting or defrauding workers, but they haven't been able to spare agents to conduct more routine checks.

"If we had the manpower and the time, we would look into those," said Phillips, in the Louisville office. "Right now, it's national security issues, along with the nonimmigrant registrations (of foreign nationals), the student registrations and criminal aliens."

He declined to say how many investigators his office had, other than to say there were fewer than 20 for the state.

Of Ferguson's staff of about 40 in the Indianapolis office, he had six agents who dealt with enforcement cases. His office mostly looked for the most egregious cases involving smuggling of undocumented workers or exploitation of those workers.

"You have to make a decision on what you can do with what you have," Ferguson said.

Last June, the agency's then-commissioner, James Ziglar, told a House committee that about half of the 1,920 INS investigators had been diverted to working with the FBI on terrorism cases. Subtracting another 300 for other tasks, he was left with about 700 agents to conduct other top-priority operations: rounding up criminals who are in the country illegally, cracking immigrant smuggling rings and investigating fraud.

As for investigating employers and undocumented immigrants who pose no security threats and are not criminals, "we've run out of investigators a long time before we ever (get) down to that priority," Ziglar told lawmakers.

The employer sanctions "had inherent problems," said Susan Martin, former director of the U.S. Commission on Immigration and now director of Georgetown University's Institute for the Study of International Migration.

"There is no really good way that employers can verify that people they hire have work authorizations and are legally in the country," she said. "We can't expect employers to become experts on counterfeits and fraudulent documentation. "

Fake documents have flourished.

"Large numbers of unauthorized (immigrants) have either fraudulently used valid documents that belong to others or presented counterfeit documents as evidence of employment eligibility," according to a 1999 report by the General Accounting Office, the independent auditing arm of Congress. "As a result, unauthorized (immigrants) have been able to circumvent the current employment verification process, thereby making it difficult for employers who are willing to comply with the law by hiring only authorized workers to do so."

But INS enforcement against employers and undocumented workers had been limited, too, the GAO concluded. From fiscal 1994 to 1998, the immigration agency devoted about 2 percent of its enforcement effort on undocumented immigrants in workplaces, and even a doubling or tripling of resources would have a minimal impact, the GAO said.

In a policy shift, the INS in 1999 decided to focus on apprehending undocumented immigrants who were criminals, attacking networks that smuggled immigrants into the United States, tracking down fraud benefit programs by those here illegally and blocking employers' access to undocumented workers. That resulted in far few employer sanctions cases, fines and arrests in 2000 than just a couple of years earlier.

"Just looking at the numbers, you can say that very little is being done," said Matthew Hayes, a White Plains, N.Y., immigration attorney and author of a forthcoming book on immigration law. He argued that "the most humane thing to do is to enforce employer sanctions," to discourage people from "making this desperate effort to get here" that claims victims every month.

But others, like Gabriela Lemus, director of policy and legislation for the League of United Latin American Citizens, the oldest Latino civil rights organization in the country, said employer sanctions have proved to be ineffective and unenforceable.

The reality is that the booming American economy of the 1990s and the dynamics of changing economies in Latin America and Asia made illegal immigration into the United States almost unstoppable, she said.

"The dirty little secret is there's a dependency on undocumented labor" in many American industries, Lemus said.

A Problem Or A Plus? Some see workers' value, others note the burden

John Gay, co-chairman of the Essential Worker Immigration Coalition, a three-year-old group of businesses and unions, including restaurants, health care companies and construction firms, said members are worried about how they will fill the jobs they expect to have over the next decade.

According to a survey by Gay's organization, 58 percent of the jobs that will be created over the coming 10 years will not require college degrees.

"We're looking at baby boomers retiring, and we're not reproducing ourselves as a country," he said. The boomers' retirements "will add demand on other economic sectors like travel. They will build second homes, and later they will get sick and need care, and eventually go into nursing homes."

All of those parts of the economy will need to fill jobs that are being filled now by undocumented immigrants, he said.

But David Simcox, a Louisville researcher on immigration and environmental issues and outgoing president of the CIS board of directors, said there are hidden costs to allowing undocumented workers to stay.

In Arizona, school systems, emergency rooms and public health clinics "are just overwhelmed" by the numbers of undocumented workers needing their services, he said.

Kentucky so far has been "a welcoming state," he said. "Here, there is not a strong sense that this is a problem."

Groups like FAIR believe there is a problem, projecting that over the coming 50 years, the United States will add 110 million people, most of them from immigration. The group wants tougher immigration enforcement, including closer cooperation among federal, state and local governments in apprehending undocumented immigrants.

There has been a demonstrated need for workers, illegal or not, and the absence of enough jobs in the countries those workers leave, said former Rep. Daniel Lungren, R-Calif., who helped Mazzoli get the 1986 reform law passed.

Lungren said it may be time for another mass legalization program for undocumented immigrants, along with a program that allows additional workers to come to the United States temporarily.

"We've got to recognize that big elephant in the room, that labor force (of immigrants)," he said. "We have got to get this thing under some sort of manageable control."