- A 1986 law makes it illegal for U.S. employers to hire aliens who are not authorized to work.
- Employers must verify that all their new employees are eligible to work and maintain records showing those employees are employment authorized.
- ICE’s Homeland Security Investigations Directorate (HSI) engages in “worksite enforcement” to ensure businesses are not employing unauthorized aliens.
- During worksite enforcement investigations, HSI can secure permission — from either the employer or a federal judge — to enter businesses and find illegal aliens.
- Traditionally, most immigration arrests occurred in worksites, not on the streets or in communities, and DHS should return to such an enforcement strategy.
Scenes of street arrests by immigration officers in Minneapolis and other major cities led to protests bordering on riots and became the purported justification for a now five-week funding shutdown of DHS. There’s often no other option when sanctuary communities refuse to hand criminal aliens over to ICE, but there is a safer and more efficient way to turn off the “jobs magnet” that draws aliens illegally to the United States and to deport those here unlawfully: worksite enforcement. Here’s how it works.
“Key to Effective Deterrence Is a Reduction in the Job Magnet”
Immigration enforcement has long been tied to federal control of the labor markets to protect American workers.
In 1903, federal supervision of immigration entries and enforcement shifted from the Department of the Treasury to the then-Department of Commerce and Labor, and when Labor was spun off as its own department a decade later, it took immigration jurisdiction with it.
With fears of communist and fascist infiltration rising in 1940 on the eve of World War II, Congress moved the then-Immigration and Naturalization Service (INS) to the Department of Justice, and ultimately to DHS in 2003 when a new terrorist threat emerged, but federal control of labor in the interests of American workers still plays an outsized role in the Immigration and Nationality Act (INA).
Section 212(a)(5) of the INA bars the admission of aliens coming to this country “for the purpose of performing skilled or unskilled labor” unless the secretary of Labor first certifies their entry “will not adversely affect the wages and working conditions of workers in the United States similarly employed”.
Aliens who skip that process and come illegally to work are removable under section 212(a)(6)(A) of the INA, while nonimmigrants who work without authorization are deportable under section 237(a)(1)(C) of the INA.
As Barbara Jordan — former congresswoman, civil-rights icon, and then-chairwoman of the U.S. Commission on Immigration Reform — explained to the House Judiciary Committee more than three decades ago:
Unlawful immigration will not be curbed unless we have comprehensive strategies that will prevent the entry of those with no right to be here and remove those who somehow make it past our best efforts at border management.
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Key to effective deterrence is a reduction in the job magnet. Employment continues to be the principal reason illegal aliens come to this country. As long as U.S. businesses benefit from the hiring of unauthorized workers, control of unlawful immigration will be impossible.
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This country has a problem. It is real. It is immediate. Simply put, if we cannot demagnetize our economy for illegal aliens who come here to seek jobs, we cannot control illegal immigration. If we cannot control illegal immigration, we cannot sustain our national interest in legal immigration. Those who come here illegally, and those who hire them, will destroy the credibility of our immigration policies and their implementation. In the course of that, I fear, they will destroy our commitment to immigration itself.
IRCA and the Form I-9
While it has long been illegal for aliens without work authorization to be employed in the United States, it wasn’t until Congress passed the Immigration Reform and Control Act (IRCA) in 1986 that the INA sanctioned the businesses that employed them.
That was the same law that provided for the largest amnesty in U.S. history (lesser amnesties proceeded and succeeded it), but Congress buried the amnesty in Title II of IRCA underneath what came to be known as the “employer sanctions” provisions in Title I of the bill (optimistically captioned “Control of Illegal Immigration”).
The first section of IRCA added a new section 274A to the INA, which requires employers to verify that new workers are eligible to work in this country in an effort to weed out aliens who weren’t authorized for employment.
If you have obtained a job in the past 40 years, you have experienced that process: your new boss, or your new boss’s bookkeeper or HR department, tells you to bring your driver’s license and Social Security card, or your passport or green card, into the office as part of your onboarding paperwork.
You are then asked to fill out section 1 of the Form I-9, “Employment Eligibility Form”, and check a box showing that you are either a U.S. citizen, a “noncitizen national” (the only time the term “noncitizen” is ever legally apt), a “lawful permanent resident” (i.e., “green card holder”), or “an alien authorized to work”.
If you can’t truthfully check any of those boxes and show documents establishing you are authorized to work (which the employer verifies in section 2 of the I-9), the business cannot “legally” hire you.
I use scare quotes for a reason: Millions of unauthorized aliens falsely claim one of those statuses so they can work and show (readily available) fraudulent documents, which many employers accept at face value and look the other way — which is why Jordan made the statements above, years after section 274A took effect.
Worksite Enforcement: NOIs, NODs, and NIFs
The Investigations Division of the INS, and later the Homeland Security Investigations Directorate (HSI) at ICE, has been given responsibility to police employers’ compliance with the section 274A verification requirements, an effort that has long been impeded by the fact that the employer isn’t required to send completed I-9s to DHS — those go into the business’s file cabinet until the government asks to see them as part of a drawn-out “worksite enforcement” process.
No predicate is required to begin that process; agents can start an investigation of any employer, but to the degree the agency investigates businesses, investigations are generally premised on leads that aliens are working there illegally.
The I-9 Inspection process begins when agents serve a “Notice of Inspection” (NOI) on a business, telling the employer it has three days to produce some or all of its I-9s, along with “supporting documentation, which may include, but is not limited to, a copy of the employer’s payroll, a list of active and terminated employees, articles of incorporation, and business licenses”.
Agents then pore over those documents, comparing claimed alien numbers (A-numbers) with ones in DHS databases and other ID numbers with records kept in other data repositories, while checking the payroll and employment lists against the Forms I-9 received.
If agents find technical discrepancies, employers are served with a “Notice of Technical or Procedural Failures” and given 10 days to clean them up or face sanctions, including fines.
But if HSI concludes the documents workers submitted are fishy, or don’t match up with known ID numbers, the directorate will serve the employer with either a “Notice of Discrepancies” (NOD) or a “Notice of Suspect Documents” (NOSD).
The NOD informs the employer that HSI can’t confirm that employees are eligible to work in the United States, at which point the business is then supposed to share the NOD with the identified workers to clear up the discrepancies (or fire the worker), and thereafter square issues with ICE.
NOSDs, on the other hand, tell employers that HSI “has determined that the documentation presented by employee(s) do not relate to the employee(s) or are otherwise not valid for employment”.
They also warn businesses that they can face civil penalties (fines) or criminal ones (fines and/or jail time) if they continue to employ the suspected workers, while also providing the employer and the employee an opportunity to set things straight with the government.
If HSI still isn’t satisfied, it may send the business a Notice of Intent to Fine (NIF), which informs the employer it is imposing monetary penalties “for substantive violations, uncorrected technical or procedural failures, knowingly hire violations, and/or continuing to employ violations”.
So-called “paperwork” fines for improperly completed I-9s can cost employers between $100 to $2,861 per violation, while section 274A(f) of the INA provides criminal penalties (fines of up to $3,000 per alien and imprisonment “for not more than six months”) if the employer has engaged in a “a pattern or practice of” knowingly hiring illegal workers.
Prosecutions
In most instances, ICE and employers settle paperwork and civil hiring violations in NIFs without litigation, but if the business wants to fight it out with the government, DHS will file a complaint laying out the violations with the Office of the Chief Administrative Hearing Officer (OCAHO), an office within DOJ’s Executive Office for Immigration Review (EOIR), where an administrative law judge (ALJ) will consider the violations and any appropriate penalties.
Historically, criminal prosecutions under section 274A(f) of the INA are rare, but are handled by DOJ in federal district court.
“Surveys”
Alternatively — or simultaneously — HSI agents may use the findings of their I-9 paperwork investigations to engage in what are formally known as “surveys”.
An survey occurs when agents go to the place of employment and ask the employer to speak with suspected illegal alien employees. In many if not most instances, the business will acquiesce in such requests and provide space for that questioning to occur.
Some employers push back, however, while in other instances the agency concludes illegal employment is so widespread that a more drastic response is in order.
In those situations, the survey becomes more like what many would refer to as a “raid”, which begins when agents apply for and obtain a judicial “Blackie’s warrant”, formally titled a “Warrant for Entry”.
As my colleague Dan Cadman has explained:
A Blackie's warrant is a civil search warrant authorizing immigration agents to enter private premises for the purpose of enforcing the civil/administration provisions of law relating to exclusion and deportation. It derives its name from the cases that established their validity — in which a restaurant chain in the metropolitan Washington, D.C., area called Blackie's House of Beef repeatedly denied entry to immigration agents to search for, and take custody of, illegal aliens in the public and non-public areas of the restaurants.
“The major advantage of the Blackie’s warrant”, the HSI “Search and Seizure Handbook” notes:
is that there is no need to specifically name the aliens being sought. Rather, the Blackie’s warrant and accompanying affidavit need only set forth a plausible basis for believing that there are unnamed illegal aliens present at the location to be searched.
It’s undeniable that when HSI determines that large numbers of aliens have presented bogus documents to work at a specific business, agents have more than “a plausible basis for believing that there are unnamed illegal aliens present at the location to be searched”.
Blackie’s warrants aren’t more commonly used because they are time-consuming to prepare, but “where consent is not an option and no criminal prosecution is contemplated”, there is no substitute.
Once in the business, agents can question anyone they suspect of working illegally and arrest those found to be removable aliens, and even before IRCA worksite surveys were the main tool INS used to make arrests in the United States.
As the Supreme Court noted in its 1984 opinion in INS v. Lopez-Mendoza, “Most arrests of illegal aliens away from the border occur during farm, factory, or other workplace surveys”, at a time “the average INS agent [was arresting] almost 500 illegal aliens” per year.
If immigration arrests were occurring at the same pace today, ICE would be making more than three million arrests per annum, roughly 7.5 times as many as in the first year of Trump II.
“Briefcase Enforcement” to Demagnetize the Illegal Immigration System
Jobs are the magnet drawing aliens to the United States illegally, and illegal aliens are most likely to be found — and most heavily concentrated — in workplaces run by businesses willing to look the other way during the hiring process.
Street and prison arrests of criminal aliens and those under final orders are appropriate (and usually mandated), but to make a big dent in the illegal population ICE should engage in what my boss, Mark Krikorian, calls “briefcase immigration enforcement” and start investigating the employers.