Obama Administration’s Worksite Enforcement Strategy Focuses on Employer Audits

The Associated Press reports the Obama Administration set records for the number of worksite enforcement audits and related monetary penalties in fiscal year 2012. But a recent Congressional Research Service analysis suggests it is too early to tell whether the Administration’s emphasis on auditing businesses is an effective immigration enforcement strategy, especially if the goal is to remove illegal aliens from the workplace.

In July 2009, the Obama Administration adopted an audit approach to worksite enforcement in lieu of the Bush Administration’s unannounced worksite inspections. Both approaches are intended to generate employer compliance but, under the Obama Administration’s deportation priorities, illegal aliens are no longer being removed from the workforce unless they are complicit in criminal matters.

Under the audit approach, the Immigration and Customs Enforcement (ICE) bureau notifies a business by letter that it will search through payroll records to look for names that don’t match Social Security numbers and other identification databases. The reviews mostly involve checking I-9 forms, which employers must keep on file, and can result in civil or criminal penalties.

AP’s analysis of data provided by ICE found the bureau audited over 3,000 businesses in fiscal year 2012. By comparison, ICE audited only 250 employers in fiscal year 2007 – a time when the Bush Administration also used surprise sweeps with follow-up paperwork investigations. From fiscal years 2009 to 2012, AP determined the total amount of administrative fines increased from $1 million to nearly $13 million. And the number of company managers arrested increased to 238.

A May 2012 analysis published by the Congressional Research Service (CRS) also examined worksite enforcement. ICE provided CRS data from fiscal year 2001 through fiscal year 2011 for a number of performance measures within its worksite enforcement program, including administrative fines and arrests, criminal arrests and convictions, and criminal fines and forfeitures. The data enabled CRS to assess how well ICE performed over time.

On the issue of administrative fines, CRS found the amounts varied during the Bush years, starting at about $2 million in fiscal year 2001, dropping to $0 in FY 06, and increasing to $675,000 in FY 08. As expected given its increased emphasis on auditing, administrative fines under the Obama Administration brought in higher amounts – about $1 million in FY 09 and almost $10 million by FY 11.

With respect to administrative arrests, which only involve illegal aliens, the number steadily increased during the Bush years to about 5,200, then dropped to a low of 1,200 during the Obama Administration. This demonstrates the lower priority Obama gave to removing illegal aliens from the workforce. For criminal arrests (both illegal aliens and citizens), the numbers steadily increased to about 1,100 during Bush’s two terms, then dropped by 650 individuals under Obama before eventually returning to about 700 in FY 11.

CRS’ analysis of criminal convictions show the numbers increasing during Bush to a high of 908 in FY 08, then dropping by almost two thirds under Obama before rising again to almost 600 in FY 11. For criminal fines and forfeitures, the numbers varied widely during Bush but hit a high of $31 million in FY 07. The numbers dipped by $10 million during Bush’s last year, then rose under Obama to $36 million in FY 10. Oddly, the number plummeted to about $7 million in FY 11.

CRS summarizes the data by noting administrative fines varied during the Bush years, then increased during Obama’s term while a series of measures — administrative arrests, criminal arrests, criminal convictions – generally increased under both Bush and Obama with the exception of administrative (illegal aliens) arrests.

CRS notes, It remains to be seen whether the worksite enforcement strategy unveiled by DHS in 2009 — with its focus on employers who knowingly employ unauthorized aliens — will result in increases in…administrative fines, administrative and criminal arrests, criminal indictments and prosecutions, and criminal fines in the coming years. More broadly, it can be argued that the ultimate test for this strategy or any other approach to worksite enforcement by DHS…is whether it helps reduce the size of the unauthorized labor force in the United States…(T)he values of the various measures for the years shown seem quite small relative to the estimated size of the unauthorized alien workforce.”

The numbers are small, given that there are an estimated seven million illegal aliens working in non-farm sector jobs. And since the strategies used under both Administrations are labor intensive and expensive, advocates for effective immigration enforcement have suggested a cost-effective alternative – the federal E-Verify system.

E-Verify enables employers to quickly and easily verify the work authorization of their newly hired employees. It also facilitates enforcement efforts since ICE can assess information within the system instead of having to visit worksites. But E-Verify’s use is limited at this point.

A number of states or local governments require some or all employers to use E-Verify to check the workplace eligibility of new hires. Federal agencies and their contractors also use E-Verify as well as Congress. A number of bills were introduced in Congress to mandate E-Verify for all employers, including Texas Rep. Lamar Smith’s H.R. 2885, but none have passed so far.

AP interviewed Julie Wood, the former deputy director at ICE, for its news story. She said she’d like to see the burden of proving the legality of a company’s workforce move from the employer to E-Verify. “At the end of the day, the fine is the least of it,” she said. “Usually the company will spend more on legal fees. But it is a huge headache for the company to lose workers.”

Read here for more information or here to read the CRS report.