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Saturday, June 10, 2006
Fischer Homes feels sting of 'get tough' approach

By Michael Collins
Post Washington Bureau

WASHINGTON - Not long ago, whenever federal authorities caught employers hiring illegal immigrants, they usually dealt with the problem by slapping the company with a stiff fine.

But when agents raided four Northern Kentucky construction sites operated by Fischer Homes last month, they took a tougher approach. They arrested four supervisors and dozens of undocumented workers and charged them with crimes.

The criminal charges reflect a dramatic shift in the federal government's strategy for cracking down on employers who hire illegal immigrants. Officials say employers take the threat of criminal charges much more seriously than fines, which were often reduced during negotiations.

"More robust criminal cases against unscrupulous employers are a much more effective deterrent than levying administrative fines," said Gail Montenegro, spokeswoman for the U.S. Immigration and Customs Enforcement agency.

"We find that the prospect of 10 years in federal prison or federal forfeiture carries much sharper teeth, and that is the future of our worksite enforcement efforts."

The government initiated the get-tough approach after the Immigration and Naturalization Service was terminated in 2003 and most of its responsibilities were transferred to three agencies within the newly created Department of Homeland Security.

One of those agencies, Immigration and Customs Enforcement - or ICE - is responsible for immigration and customs laws inside the United States.

Immigration and Customs Enforcement is conducting far more criminal investigations than the old Immigration and Naturalization Service, which tended to rely on administrative fines as a sanction against companies caught hiring illegal workers.

Such fines were matters between the employer and the Immigration and Naturalization Service and were not governed by the courts.

Authorities say criminal investigations are more effective because defendants can now be convicted in court and face the possibility of prison time. Even if a case is settled, the agreement could still fall under the court's jurisdiction.

That is significant because it means that payments would be mandatory and that other stipulations could be included in the settlement, such as requiring that a company put internal procedures in place to comply with the law.

Before the policy shift, illegal worker arrests had fallen off dramatically, from 2,849 in 1999 to 445 in 2003, according to a report by the government's General Accounting Office.

The following year, however, those numbers began to climb - jumping to 845 in 2004 and 1,145 in 2005. This year alone, more than 2,100 people have been arrested. And those numbers don't include the arrests in the Fischer Homes investigation or several other raids that took place last month.

In the criminal cases, the government typically brings charges of knowingly hiring illegal aliens and, whenever possible, of money laundering and harboring illegal aliens. Money laundering is a felony punishable by up to 20 years in prison, while harboring illegal aliens carries a potential 10-year prison sentence.

Those charges also give authorities the right to seize assets that employers have derived from criminal activities.

"It is good to see that they are making an attempt to enforce the law," said Caroline Espinosa, spokeswoman for NumbersUSA, which is pushing for tougher immigration enforcement. "Sometimes, fines aren't enough."

Fines were considered just another cost of doing business and especially palatable to employers because they were offset by the savings from employing illegal aliens, "in most cases, at a much lower wage than they would be paying American citizens," Espinosa said.

"Breaking this law actually hurts more people than most people realize," she said, because "it drives down wages for American citizens as well."

Columbus, Ohio, attorney David Cook, who specializes in employment-based immigration issues, said that while criminal charges are a deterrent to hiring undocumented workers, he thinks the recent raids are part of a bigger strategy to build support for the Bush administration's proposed guest worker program.

"I think the way they see the opportunity to build support for that is to show that they are getting tough on the unauthorized workers and on worksite enforcement," said Cook.

Many employers make a good-faith effort to comply with immigration laws, Cook said, but find the process used to verify a worker's identity and work authorization is cumbersome and difficult to do correctly.

For example, the Department of Homeland Security has changed the type of documents that an individual can present for identification purposes and to verify work authorization. Yet, "they continue to publish and provide a form that has the old list of documents," Cook said. "They've never bothered to update their forms."

Employers "need to be educated as to what the law is and come to an understanding of how the government is applying the law," he said.