Critics cite lax efforts to enforce federal worksite immigration laws

U.S. employers continue to hire illegal immigrants because of lax enforcement efforts and the proliferation of fake documents, lawmakers and government auditors said Tuesday.

The Homeland Security Department's bureau of Immigration and Customs Enforcement, which is responsible for enforcing worksite immigration laws, shot back by issuing a fact sheet outlining numerous investigations conducted within the last year. ICE took responsibility for worksite enforcement when the Immigration and Naturalization Service was abolished in 2003.

"Worksite enforcement was a low priority for INS and continues to be a low priority for ICE," Richard Stana, director of homeland security and justice issues at the Government Accountability Office, told a House Judiciary subcommittee. "The resources INS and ICE devoted to worksite enforcement have continued to decline."

For example, GAO found that between 1999 and 2003 -- the most recent year for which comparable data was available -- the percentage of "work years" ICE agents spent on worksite enforcement decreased from about 9 percent to about 4 percent. Additionally, the number of notices of intent to fine employers and the number of unauthorized workers arrested at worksites also declined. Between 1999 and 2004, the number of notices of intent to fine employers for improperly completing paperwork or knowingly hiring unauthorized workers decreased from 417 to three.

The ICE fact sheet, however, outlines about 24 worksite enforcement operations conducted during the past year at airports, nuclear and chemical plants, defense facilities, seaports and "traditional" worksites, such as construction locations, restaurants and cleaning services.

In March, ICE also reached the largest civil settlement ever in a case involving alleged hiring of illegal immigrants. Under the settlement, Wal-Mart Stores Inc. agreed to pay the government $11 million and implement an unprecedented compliance and training program, including a commitment to never again employ illegal aliens.

ICE said it "has developed a comprehensive strategy for fighting illegal immigration that includes effective worksite enforcement aimed at promoting national security, protecting critical infrastructure and ensuring fair labor standards."

The 1986 Immigration Reform and Control Act made it illegal for individuals and companies to knowingly hire unauthorized workers, or to continue to employ, recruit or refer them for a fee. Under the law, employers can be fined up to $11,000 for each unauthorized worker.

GAO found, however, that document and identity fraud make it difficult for employers to ensure that they hire only authorized workers, and also make it easier for unscrupulous employers to knowingly hire unauthorized workers.

DHS established a voluntary program in 2003 allowing employers to check the identity of workers, but only 2,300 out of about 5.6 million employers in the country were participating by last year. DHS officials told GAO the department is considering ways to improve the program to help it detect cases of identity fraud, for example, by requiring employers to submit a digital photograph with employment authorization information.

But GAO also found that ICE often lowers the amount of a fine in negotiations with employers, which undermines effective enforcement and means that company owners might view fines as the cost of doing business.

"ICE officials told us fine amounts recommended by both INS and ICE agents were often negotiated down in value during discussions between agency attorneys and employers," Stana noted. "These officials said that the agency mitigates employer fines because doing so may be a more efficient use of government resources than pursuing employers who contest or ignore fines, which could be more costly to the government than the fine amount sought. Furthermore, the amount of mitigated fines may be, in the opinion of some ICE officials, so low they believe that employers view it as a cost of doing business."

After the 9/11 attacks, Stana added, INS and then ICE focused its worksite enforcement resources on identifying and removing unauthorized workers from critical infrastructure sites, such as airports and nuclear plants. In 2003, ICE issued a memo requiring field offices to request approval from ICE headquarters prior to opening any work site enforcement investigation not related to the protection of critical infrastructure sites, such as investigations of farms and restaurants, Stana said.

"Field office representatives reported that noncritical infrastructure worksite enforcement is one of the few investigative areas for which offices must request approval from ICE headquarters to open an investigation, and also reported that worksite enforcement is not a priority unless it is related to critical infrastructure," Stana said.