While people choose to risk life and limb to enter this country illegally for many reasons, the vast majority come to seek employment -- and they find it. What would happen if employers were effectively penalized for hiring the undocumented? Would there be fewer job opportunities for those who should not be here and, consequently, fewer people trying to enter illegally?
Our current immigration policy is dysfunctional, partly because business' demand for more workers has interacted with the intertwining forces of racial and ethnic prejudice and the legitimate concerns of existing workers to protect their livelihoods. This pattern has a long history. Early threats to some U.S. workers by increasing numbers of new immigrants quickly became platforms for racist and nativist voices, such as the Chinese Exclusion Act of 1882. The 1917 literacy tests and the 1924 national origin quotas, enacted with support of organized-labor leaders like Samuel Gompers, aimed to stop or slow the flow of immigrant workers from southern and Eastern Europe -- partly because of bigotry, partly because they pulled down wages.
Historically, however, immigration policy has rarely focused on the pull of the labor market or the working conditions of workers (domestic or immigrant), but rather on the immigrants themselves -- their race, their country of origin, their numbers, and their ability to become “American.” Only after 1973 did the idea of penalizing employers for hiring the unauthorized take root. Both the AFL-CIO and the NAACP supported this idea, motivated by legitimate worries that an unending supply of workers could undercut hard-fought gains of organized labor or that new competition with those on the lowest rungs of the economic ladder would reduce wages. Employers complained of new regulatory burdens. Advocates for the growing Hispanic and Asian populations complained about the potential for discrimination against U.S. citizens and legal permanent residents -- with good reason, given America's history.
Employer sanctions finally became law when Congress enacted the Immigration Reform and Control Act of 1986. Unfortunately, as experts across the ideological spectrum have noted, employer sanctions failed utterly. Indeed, the AFL-CIO now urges repeal of employer sanctions because they have become a tool of employers to intimidate workers, rather than an effective mechanism to reduce the supply of undocumented workers.
The failure stemmed from compromises in the legislation itself as well as flawed implementation. First, we never solved the ID problem. A volatile and intense debate had ensued regarding how to prove legal status. Should a national ID card be required? And what's to be done about potential discrimination against legal U.S. workers based on national origin, i.e., those who look “foreign,” such as Hispanics and Asians? Congress compromised by providing that employees could prove legal status by showing a variety of documents; employers would record their inspection of such documents by filling out an I-9 form for each employee. As a result, the market for fraudulent documents -- fake Social Security cards, driver's licenses, birth certificates -- exploded. Employers often conveniently refuse to challenge questionable documents, either cynically or to avoid charges of discrimination. A 1990 General Accounting Office report concluded that widespread discrimination resulted from implementing the Immigration Reform and Control Act's I-9 requirements.
Further, bureaucratic inefficiencies, inadequate resources, and lack of political will to penalize employers doomed the experiment. Congress delegated to the Wage and Hour Division of the U.S. Department of Labor -- which has responsibility for enforcing minimum wage, overtime, and other important labor standards -- the responsibility for inspecting the I-9 forms of employers. (Full disclosure: I served as administrator of Wage and Hour from 1993 to 1997.) Yet where a Wage and Hour investigator has the authority to assess penalties for failure to comply with other labor standards, with respect to I-9 violations, referrals are made to the Immigration and Naturalization Service (INS, now Immigration and Customs Enforcement, or ICE). The INS, and now ICE, gave low priority to these referrals as its primary focus was on apprehending undocumented persons, not penalizing employers. At a June 2005 hearing, Congress found that “intent to fine” notices to employers for hiring the undocumented had declined from an insufficient 417 in 1999 to just three in 2004. With more than 6 million workplaces, more than 100 million employees, and only about 788 Wage and Hour investigators, employer sanctions became merely a nuisance requirement to maintain records, not a serious risk of violations producing real penalties.
Yet, despite the results to date, employer sanctions deserve a second look. If we are concerned about stagnating wages and adverse working conditions for those at the bottom, reducing the supply of unauthorized workers would change the dynamics of the labor market. We should be able to ask this question without being considered racist or nativist. Today, those who are competing with the undocumented workforce are often legal immigrants and their children, as well as traditional low-income populations. Until we limit the supply of undocumented workers, we will never know if the agricultural fields, meatpacking plants, and chicken-processing factories truly cannot find legal U.S. workers by paying decently. If new workers are needed, it should not be because the wages and terms offered are insufficient to attract existing legal workers.
Since 1986, we have invested billions of dollars in fences, technology, and manpower along the border and have not succeeded in reducing the flow of undocumented workers into our country. Yet the proposals in Congress to increase enforcement at the border and against immigrants continue unabated, including new efforts to require police officers, firefighters, teachers, and others to verify the legal status of those with whom they come into contact. This would create real hardship for those in need of services. Why not focus on the very place where the majority of illegal immigrants can be found -- that is, at the workplace?
To achieve a workplace focus, we would need to be serious about enforcing penalties against employers. We could, as some have suggested, give full responsibility of investigation and penalty assessment to one agency. For instance, part of the Department of Labor's mission is to inspect workplaces and enforce laws against employers who violate them.
With the changes in technology of the last 20 years, it would be possible, albeit difficult, to design a more efficient system of verifying the legal right of persons to work in the United States. Both the Social Security Administration and ICE have undertaken pilot programs to use technology to verify Social Security numbers or immigration status. These programs have shown that technology exists that can provide relatively unobtrusive means (and less expensive ones then sending out individual inspectors) for identifying those who are unauthorized to work or ferreting out inaccurate or fraudulent Social Security numbers. Yet these pilot programs have also starkly shown that without protections and limitations, many employers will use such information to intimidate and exploit the most vulnerable workers. Moreover, they revealed that both the Social Security and ICE databases contain inaccuracies and gaps.
Notwithstanding these existing problems, it is possible to conceive of a system for verifying the legal authority to work of all who are employed in the United States that would be accurate, universal, nondiscriminatory, neutral, and efficient. We need to build in privacy protections while guarding against employers using such a system to intimidate workers who are seeking to improve their working conditions and livelihoods. For example, we could require that the verifying agency provide information to both employers and employees. We need to build in a specified period of time for an employee to appeal the determinations. If we designed such a system and added strict liability with stiff penalties -- in the European Union, employers are routinely fined $60,000 or more for each unauthorized employee -- Labor Department investigators could focus on employers in low-wage industries or with high numbers of unverified workers, concentrating resources on them (rather than the current haphazard paper chase of tracking I-9 forms).
Many people who care deeply about the condition of immigrants and workers argue against employer sanctions or employer verification. They assert that better enforcement of minimum wage, overtime, safety rules, and other labor standards will deter employers from hiring the undocumented. I know firsthand that many employers who comply with other labor standards still hire the undocumented. Many businesses pay the minimum wage and have barely tolerable working conditions because there are sufficient undocumented workers willing to accept those terms. If we care about low-income workers in this country, we need to create pressure to improve their economic condition by reducing the supply of unauthorized workers.
Others argue that an effective employer verification system would drive the undocumented further underground. However, if jobs are not readily available, the number of those willing to risk their lives to cross borders illegally should be much smaller than it currently is. Lastly, if we do not focus on the workplace, the pressures to control illegal immigration will cause politicians to focus on other venues to identify the undocumented, such as schools, hospitals, and community-based organizations, or more intrusive checkpoints farther away from the border.
With President Bush and business interests supporting a major guest-worker program and immigrant advocates backing legalization for the currently undocumented, we must ask if this country is finally ready to require employers, not just immigrants, to abide by immigration laws. If we do not try to reduce the magnet of jobs, 20 years from now we will still have a broken immigration system and millions of undocumented and legal workers working for minimum wage -- or below -- and toiling in intolerable conditions.
Maria Echaveste, an American Prospect board member, is the former deputy chief of staff for President Bill Clinton. She is also the co-founder of a Washington consulting group, Nueva Vista, and represents, among others, the United Farm Workers.