http://www.denverpost.com/business/ci_3276995

business
Employers don't follow rules
Critics say government must crack down on illegal hiring for immigration reform to work. Many lawmakers and analysts say penalizing businesses that employ undocumented workers remains a low priority in the U.S.
By Jacques Billeaud
The Associated Press SECOND IN A SERIES
DenverPost.com

Phoenix - Politicians setting out to repair America's immigration system in the coming year will face a problem that's viewed as being a low priority for the government yet is blamed for encouraging border crossings: employers that break the law by hiring illegal immigrants.

Many lawmakers and immigration analysts give the government poor marks in cracking down on the hiring of illegal immigrants, who account for an estimated 4 percent to 8 percent of all people working in the United States.

The government conducts a relatively small number of employer investigations, they say, provides inadequate resources for such inquiries, and has written deeply flawed rules for employers to follow.

That will have to change, say advocates for an immigration overhaul, if Congress approves a guest-worker program as part of the proposed immigration updates it will consider in the next few months.

Otherwise, employers who follow the rules would face higher labor costs for legal foreign workers, while unscrupulous businesses would benefit from the lower wages accepted by illegal immigrants, said Angela Kelley, deputy director of the pro-immigrant National Immigration Forum.

The business community has said it wants a clear and legitimate process to follow in hiring but that the government's rules now place unreasonable burdens on employers, such as making them scrutinize records presented by new employees to show employment eligibility at a time when forgeries abound.

Employers say their expertise is in running businesses, not in figuring out whether a Social Security card is authentic.

"You can tell an obvious fake, but most of them - if they come in fake - you can't tell," said John Plescia, president of a roofing company in Phoenix. "You absolutely can't tell."

A low priority

Outside a day labor center in north Phoenix, David Vargas, a former technical support worker from the Mexican border city of Ciudad Juárez, said he has never been turned down for not having the right papers in his two years working construction jobs in this country.

It's unclear whether Vargas, who said he doesn't lie when employers ask about his status as an illegal immigrant, presents employers with documents.

"When I get a job, they only ask if I have them. They don't ask to see them," said Vargas, who lost his job at a plastics factory in Ciudad Juárez where he repaired production equipment until Mexico experienced an economic downturn. "They don't want to know if you have papers."

The father of three said he earns $350 to $700 a week in the United States, compared with $120 in Mexico.

Over the past several years, the government's efforts to confront illegal hiring have been "a relatively low priority," according to a report released in August by the Government Accountability Office, the investigative arm of Congress.

Immigration and Customs Enforcement, whose responsibilities include combatting illegal hiring, disputes that conclusion, saying it does plenty of employer investigations.

But it does acknowledge that its priorities shifted after the 2001 terrorist attacks. Work sites with implications for national security - nuclear plants, military bases, airports, chemical plants - take first priority. Next, agents target flagrant violators, in hopes the example will deter others.

In the past 23 months, authorities have clamped down on immigration violations at military bases, airports and other sensitive workplaces in San Diego and Imperial counties in California, examining employment records at 780 companies and arresting more than 300 illegal immigrants.

In one case, federal agents found that 85 of the 167 employees of a contractor that paints naval ships were illegal immigrants.

None of the companies examined in the crackdown has been charged with a crime, because they said they didn't know they were hiring illegal workers, completed the necessary employment documents, inspected records presented by workers and cooperated with investigators, authorities said.

In Texas, an employment agency was barred from Defense Department contracts for three years, fined $20,000 and ordered to pay $414,000 in civil penalties in October after it admitted using fake documents to get illegal immigrants jobs with the nation's top producer of military rations.

The investigation began in 2003 after an al-Qaeda operative was arrested with information pointing to McAllen, Texas, and a company that makes meals ready to eat as terrorist targets. No direct link to terrorism was found.

Administrative fines

The government opened 511 work-site investigations last year, a modest increase from the previous year but well below the 3,844 cases in 1999. Immigration and Customs Enforcement spokesman Dean Boyd said last year's figure represents only full-fledged investigations, while the 1999 total also includes spot checks of employers.

No breakdown was available for the number of cases with national security implications, though the congressional report said three-fourths of all cases in a seven-month sample were related to such "critical infrastructure protection." The number of notices of intent to fine companies dropped from 417 in fiscal 1999 to three in 2004, the report said. The average amount of fines was unavailable.

The biggest administrative fine for work-site enforcement violations was $1 million against Colin Cares, a building cleaning and maintenance company, in September 1996.

Fines aren't much of a deterrent because lawyers negotiate them down to amounts that employers regard as the price of doing business, Boyd said.

Today, the government prefers to seek monetary penalties by taking companies to court in civil cases, which provide better assurances of payment than administrative fines negotiated outside court, authorities said.

Since taking this approach, the largest financial penalty in a civil immigration settlement came earlier this year, when Wal-Mart agreed to pay $11 million to settle allegations that its cleaning contractors hired illegal immigrants.

"A law without teeth"

Criminal investigations also are an effective deterrent to illegal hiring, Boyd said.

"I think they made a fair effort of enforcing what at the end of the day is an unenforceable law," said Daniel Griswold, director of the Center for Trade Policy Studies at the Cato Institute, a libertarian research foundation in Washington.

The business community said the government allows too many records to be accepted from new employees, increasing the chances of getting fake documents. In addition, anti-discrimination laws limit the way that businesses can question prospective employees.

The law also requires that federal authorities prove that a business knew it was employing illegal immigrants, not merely that it hired people who were later revealed to be illegal.

U.S. Rep. Silvestre Reyes, D-Texas, a former U.S. Border Patrol boss credited with dramatically reducing illegal crossings in the El Paso area in the 1990s, said federal agents aren't given the resources they need to crack down on illegal hiring.

Illicit border crossings dropped shortly after Congress created employer sanctions for illegal hires in 1986 because would-be border-crossers believed businesses wouldn't hire them, Reyes said.

"It didn't take but a couple or three years for people to see that it was a law without teeth," said Reyes, whose work as a Border Patrol chief included employer investigations. Then, illegal crossings increased, Reyes said.

Mixed signals

Arizona Republican Sen. Jon Kyl, who has proposed an overhaul of the country's immigration laws, said the only deterrent against illegal hiring is the Border Patrol catching immigrants before they get to jobs in the nation's interior.

"There has been a complicity among the businesses and the government and other public officials, and everybody is a little bit to blame in all of this," he said.

Businesses leaned on members of Congress in the late 1990s to urge federal agents to ease up on work-site enforcement after crackdowns on workers in Vidalia onion fields in Georgia and at meatpacking plants in Nebraska, immigration analysts and politicians said.

Ira Mehlman, spokesman for the Federation for American Immigration Reform, which advocates limits on immigration, said that kind of political pressure sends a signal to law enforcers that they can catch grief for doing what they are supposed to.

"You can actually be penalized for it," Mehlman said.

Coming Tuesday - While new businesses are forming to lure immigrant dollars, illegal immigrants are following the jobs into areas beyond the border states, including Colorado.