Immigration audits are increasing against employers (San Diego Union-Tribune)

Immigration audits are increasing against employers
Sixty-six probes done on local workplaces in fiscal 2010, up from just one in 2008

BY MORGAN LEE
ORIGINALLY PUBLISHED OCTOBER 9, 2010 AT 10:10 P.M., UPDATED OCTOBER 10, 2010 AT 12:02 A.M.

Employers increasingly are bearing the brunt of enforcement against illegal immigrant labor in the workplace because the federal government has shifted from select, high-profile raids to more widespread audits aimed at ousting unauthorized workers.

Enforcement in San Diego County mirrors a national trend toward more scrutiny of employers’ I-9 forms, the universal tool for verifying permission to work in the United States.

Immigration and Customs Enforcement, or ICE, initiated 66 audits with local employers in the fiscal year ending Sept. 30, reviewing 5,588 individual I-9s in the process. That was up from 44 audits in fiscal 2009 and just one audit in 2008.

A company can be fined up to $1,100 for each illegal employee, and knowingly violating verification laws can lead to criminal charges and forfeited assets.

Nationwide, the agency said it opened more than 2,200 cases in fiscal 2010, up from about half that number in fiscal 2008.

It may be too soon to gauge how most businesses are reacting — if at all.

A handful of employers, five in the San Diego region, have volunteered for an initiative where ICE provides guidance on how to self-police against unauthorized workers. National immigration law firms that cater to employers have reported rising concern about audits.

“The big question is at what point does it change employer behavior,” said Philip Martin , a professor and expert on migrant farm labor at the University of California Davis.

ICE officials declined to identify San Diego companies that have been fined or cited. The agency recently publicized a $1 million fine that was the outcome of I-9 audits in Michigan against clothing retailer Abercrombie & Fitch. That investigation found no instances of unauthorized workers hired knowingly, but did turn up deficiencies in the verification system.

President Barack Obama’s administration has stressed the government’s obligation to provide a fair marketplace and prevent businesses from gaining an economic advantage by flouting immigration laws. In April 2009, the government announced a fundamental switch in tactics away from workplace raids, most notably carried out at meat-processing plants in the Midwest, to what have been dubbed “silent raids.”

“Our strategy is not to go in and do sweeps and pick up illegal aliens and move on — and the employers are not punished,” said Mike Carney, a special agent in charge for Immigration and Customs Enforcement in San Diego. “That just didn’t work.”

Workplace raids during President George W. Bush’s era drew humanitarian complaints from migrant advocacy groups, and the Supreme Court ruled last year that prosecutors had gone too far in using identity-theft laws to prosecute undocumented workers who used fake identification to land jobs.

The new face of immigration enforcement is a legal notification that typically gives businesses three days to present their I-9 forms. When violations are found, an employer has 10 business days to clear up mistakes or potentially face fines.

Many suspect employees simply don’t show up for work again after they’re asked about an I-9 discrepancy, according to attorneys and other officials familiar with the audit process. Without an authentic I.D., they can’t be pursued.

“The administration is forcing the employer to rid itself of illegal employees,” said Bernhard Mueller, an attorney with Ogletree Deakins, a leading national immigration law firm. “What the government is really planning to do, in my opinion, is to make it more difficult for aliens to find jobs and therefore eventually leave the United States.”

Workers who continue to pursue unauthorized employment or become material witnesses in cases against their employers are likely to wind up before an immigration judge. But overall, illegal immigrants are less likely than before to face criminal charges, which declined nationally from 968 cases in fiscal 2008 to well under 300 for most of fiscal 2010.

A few thousand audits among tens of millions of U.S. businesses is unlikely to have a huge impact, said Stanley Renshon, a political science professor who writes about immigration issues.

“What you have is the appearance of enforcement without the reality of it,” said Renshon, who supports legal immigration and teaches at City University of New York.

An audit system that allows illegal immigrants to walk away has a corrosive effect on broader enforcement efforts, he insisted.

“You don’t only want a culture of compliance at the employer level,” he said. “You want a culture of compliance for people who are coming here out-of-status. ... There has to be a consequence.”

Last week, ICE announced that 392,000 foreign nationals — a record number — were removed from the U.S. in fiscal 2010. It was a sharp increase from previous years, largely due the cross-checking of fingerprint information against all people booked into participating jails in 33 states.

In at least one well-known case, an I-9 audit led to large-scale dismissals of illegal immigrants. Gerber Farms in Brewster, Wash., reportedly fired more than 500 of its workers, mostly immigrants from Mexico, after investigators examined its records.

Audits have continued to target employers with access to “critical infrastructure,” such as military bases or airports, a national security priority established under the previous administration in Washington, D.C. That emphasis played a role in the investigation and criminal charges against operators of the Pacific Beach restaurant French Gourmet, whose catering business made visits to Camp Pendleton.

The restaurant’s owner and another manager have been accused of knowingly hiring undocumented workers and continuing to employ them after being told that the employees’ Social Security numbers were bogus. They have asserted their innocence.

Businesses wary of I-9 audits can find themselves struggling to forge a delicate balance between fulfilling verification obligations and treating employees fairly, including foreign nationals working legally in the U.S. Anti-discrimination provisions of the Immigration and Nationality Act regulate unfair practices during employment-eligibility verification.

“Where the middle ground is is often hard to determine,” said Mueller, the immigration attorney.

Carney at ICE painted a different picture, noting that handbooks and officials are available to help companies.

“They’re not expected to be experts in the identification of fraudulent documents,” he said. “If it’s a good fake, as long as you’ve recorded the (Social Security) numbers in a timely fashion, then you’re good. You’re not held liable.”

Mike Henderson, president of an Escondido-based manufacturer with five full-time employees, verifies workers’ legal status through the online “E-Verify” system that connects to records at the Social Security Administration and Homeland Security Department. He recently signed up for a Homeland Security-sponsored training program on the I-9 process.

His business, Unicel Corp., makes lightweight panels used in everything from Coast Guard cutters to passenger trains — applications that make an audit more likely.

Henderson said E-Verify gave him confidence that he was hiring legal workers, although he never had an employee flagged. He also has fretted about passing over an applicant unfairly.

“Avoiding charges, or even the impression or image of being a discriminatory employer, is in everybody’s best interest,” Henderson said.