Magazine article The American Prospect

Target Employers: For Comprehensive Immigration Reform to Work, Employers Need to Feel the Heat

Magazine article The American Prospect

Target Employers: For Comprehensive Immigration Reform to Work, Employers Need to Feel the Heat

Article excerpt

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 he 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). …

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