Trump vs. Biden: Worksite Enforcement

Two different visions, likely with two different outcomes for American workers and immigration itself

By Andrew R. Arthur on October 16, 2020
  • The worksite employment provisions in the INA empower ICE to investigate, charge, and prosecute unscrupulous employers in the United States who have hired aliens who are not authorized to work in this country. This protects the wages and working conditions of American workers — that is, U.S. citizens, nationals, and lawfully admitted immigrants.
  • ICE's HSI branch is responsible for worksite enforcement. HSI has expanded its worksite enforcement efforts to a significant degree under the Trump administration. That has included large-scale enforcement operations, at least one of which has led to criminal indictments.
  • The president has failed thus far, however, to make the E-Verify system mandatory, although he has touted the program in the past and has the executive power to mandate its use. If fully implemented, E-Verify would have a huge impact in deterring the employment of unauthorized workers in the United States.
  • Former Vice President Biden has not been specific as to what he plans to do to curb the illegal employment of aliens in the United States, short of ending what he describes as "workplace raids based on workers' status".
  • He promises to "incentivize workers and employers to operate within legal channels" by reforming the temporary visa system, but fails to explain how he will do so generally, and how he will do so without dampening the wages of American workers in particular.
  • Employees in the workplace are generally subject to the same protections under U.S. labor laws, with the obvious exception of the employment provisions in the INA. Biden's campaign documents, as a whole, indicate that the former vice president is much more focused on protecting the rights of workers  in general — including those unlawfully present — than enforcing the immigration laws in the workplace. It is doubtful, however, whether he can expand the former while limiting the latter.

In a recent series of posts, I have been comparing and contrasting the immigration proposals of former Vice President Joe Biden and President Donald Trump with respect to immigration enforcement. In this one, I will examine the differing positions taken by the two as relates to worksite enforcement, based in the case of Biden on his campaign documents ("The Biden Plan for Securing our Values as a Nation of Immigrants" and the "Biden-Sanders Unity Task Force Recommendations"), and in the case of Trump on how he has addressed the issue thus far.

Simply put: Trump has more vigorously enforced immigration laws in the worksite than his predecessor, but could have also implemented E-Verify by executive action — and thereby significantly reduced the number of aliens working unlawfully in the U.S. workforce — but thus far has failed to do so.

Biden wants to end what he deems "raids" in the workplace, and promises to "incentivize workers and employers to operate within legal channels" by reforming the temporary visa system — but fails to explain how he will do so without impacting the wages of American workers.

Worksite Enforcement

Controlling unauthorized employment by aliens is key to enforcing the immigration laws as a whole. As civil-rights icon Barbara Jordan — then chairwoman of the Clinton administration's Commission on Immigration Reform — explained in August 1994: "Employment continues to be the principal magnet attracting illegal aliens to this country. As long as U.S. businesses benefit from the hiring of unauthorized workers, control of unlawful immigration will be impossible."

For that reason, she asserted: "The Commission believes that both employer sanctions and enhanced labor standards enforcement are essential components of a strategy to reduce the job magnet."

"Employer sanctions" in this context is synonymous with worksite enforcement. It is the responsibility of Homeland Security Investigations (HSI), a component of U.S. Immigration and Customs Enforcement (ICE) within the Department of Homeland Security (DHS), as I will explain further below.

Because employment is the magnet that draws migrants to enter this country illegally (and that also encourages nonimmigrants to overstay), effective worksite enforcement makes securing the border easier because it reduces the number of aliens seeking illegal entry. It also reduces the number of removable aliens ICE must apprehend, enabling the agency to focus its limited resources on criminals and national security threats.

A Historical Perspective

Worksite enforcement protects the wages and working conditions of American workers — U.S. citizens, nationals, and lawfully admitted immigrants, a key goal of our immigration laws for over 100 years.

The earliest general immigration law in the United States was the Immigration Act of 1882. Thereafter, Congress passed additional laws limiting immigration, many of which (in one way or another) were intended to preserve employment opportunities for American workers, and ensure them a safe workplace.

The Immigration Act of 1917, for example, specifically excluded:

[C]ontract laborers, who have been induced, assisted, encouraged, or solicited to migrate to this country by offers or promises of employment, whether such offers or promises are true or false, or in consequence of agreements, oral, written or printed, express or implied, to perform labor in this country of any kind, skilled or unskilled.

It also barred "persons who have come in consequence of advertisements for laborers printed, published, or distributed in a foreign country". These restrictions may seem strange to those familiar with modern U.S. immigration law, but the clear intent (in an age when travel from abroad was much more difficult than it is today) was to ensure that if employers were looking for workers, they looked to the U.S. labor market, first and foremost.

In fact, by the turn of the 20th century, immigration to this country was so tightly tied to the labor market that, beginning in 1903, the responsibility for controlling immigration was moved from the Department of the Treasury to the newly formed Department of Commerce and Labor.

When that department was split in two a decade later, the responsibility for enforcing the immigration laws fell on the secretary of Labor, where it resided until 1940. The Immigration and Naturalization Service (INS), which enforced the immigration laws at the ports, border, and interior was created within the Department of Labor (DOL) in 1933.

Concerns about protecting the United States from the wars then raging in Europe and Asia prompted a shift of the INS to the Department of Justice (DOJ) in 1940. INS remained at DOJ until it was abolished on March 1, 2003, and its duties reassigned to components in DHS by the Homeland Security Act of 2002.

The Immigration and Nationality Act of 1952

Although immigration enforcement moved from DOL to DOJ to DHS, the focus of the immigration laws on controlling the entry of workers to protect American labor has continued.

The Immigration and Nationality Act of 1952 ("INA", which consolidated various statutes passed throughout the years), specifically barred the entry of certain aliens coming to perform skilled or unskilled labor if DOL determined that there were sufficient American workers to perform such labor and "the employment of such aliens will adversely affect the wages and working conditions of the workers in the United States similarly employed."

That restriction remains in the INA, today, in section 212(a)(5) of the INA. Instead of DOL having to affirmatively certify that the admission of aliens to perform labor would adversely affect the wages and working conditions of American workers, however, now those alien workers are inadmissible unless DOL certifies that their admission would not affect the wages and working conditions of American workers who are "similarly employed".

The Immigration Reform and Control Act of 1986 and Worksite Enforcement

For decades after 1952, the focus in the INA in protecting American wages and working conditions was limited to restrictions on the entry of alien workers and on their deportation, and not on preventing U.S. employers from hiring those foreign workers to begin with. That changed in 1986.

The Immigration Reform and Control Act of 1986 (IRCA), enacted in November of that year, provided a massive amnesty of aliens unlawfully present in the United States, in exchange for provisions that barred employers from hiring aliens who were not authorized for employment (found in current section 274A of the INA), backed up by civil and criminal penalties.

Well, that was the idea, at least. Under that provision, employers are required to verify the employment eligibility of new workers, and certify that they have examined documents those workers have presented to establish that they are eligible to be employed in the United States on the Employment Eligibility Verification Form, or the "Form I-9".

The new employee must also attest on the Form I-9 that he or she is authorized to work in this country. The employer is then required to retain that Form I-9 until DOL, DOJ, or (under current law) ICE asks for it.

But, as my colleague Jerry Kammer stated during a December 2017 Center panel (with then-Rep. Lamar Smith (R-Texas) and Dr. Lindsay Lowell, visiting researcher at the Georgetown University School of Foreign Service): "IRCA delivered on the amnesty. It did not deliver on the worksite enforcement. And so we've had a system ever since where we have sort of pretended to enforce the law, but not really seriously."

The problems with the system, as the panelists made clear, were twofold. The first had to do with verifying the validity of the documents the new employees presented. Kammer explained: "IRCA passed in 1986, but the gaping hole was verification. And that hole was exploited by the proliferation of [a] fraudulent document industry that reduced the I-9 [employment] verification process." The second problem, Lowell stated, was that under IRCA, "we weren't going to be hard enough on employers."

Worksite enforcement as set up in IRCA was a labor-intensive process for the INS, and remains one for ICE HSI. Agents have to physically examine the employer's payroll and I-9 documents, and then assess whether the documents that were presented were fraudulent of not. They may also have to go to the worksite and verify the employment eligibility of the workers themselves.

In 1986, that process made a certain amount of sense, and had some limited short-term effect on eliminating the employment magnet that encouraged aliens to enter and work in this country illegally (as the Center explained in 1993). On the former point, there was no effective way prior to the rise of the internet for employers to provide the information on the Form I-9 to INS in real time. That is no longer true today.

E-Verify

E-Verify, which was introduced as Basic Pilot in 1996, is "a web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States." Specifically, that system allows employers to "verify the identity and employment eligibility of newly hired employees by electronically matching information provided by employees on the Form I-9 ... against records available to the Social Security Administration (SSA) and" DHS.

No longer do employers simply have to accept documents that new employees accept at face value. Instead, they can verify almost instantaneously that a document is valid and has been issued to the employee presenting it. According to the National Immigration Forum, as of August 2018, more than 750,000 of the nation's 18 million employers were using the system, which "is mandatory for all federal employers and contractors". In addition, 24 states require the use of the system to one degree or another.

That said, however, E-Verify is voluntary for most of the nation's employers, and there is therefore no incentive for unscrupulous ones to use the system.

And E-Verify is not foolproof and is (somewhat) subject to evasion, as the Los Angeles Times argued in August 2019. The major problem, according to the Times? "It does not detect when a job applicant is using somebody else's identity." That said, as I explained in September 2019, the fact that unauthorized workers and employers break the law to evade E-Verify is proof that the system actually works, because "whether it is the worker or the employer or both who skirts the law, there is a significant amount of criminal exposure for all those involved."

You don't have to take my word for the effectiveness of E-Verify, however. In their article "Do State Work Eligibility Verification Laws Reduce Unauthorized Immigration", researchers Pia M. Orrenius and Madeline Zavodny found that "having an E-Verify law reduces the number of less-educated prime-age immigrants from Mexico and Central America — immigrants who are likely to be unauthorized — living in a state."

HSI and Worksite Enforcement Today

Nonetheless, most worksite enforcement is still carried out by the HSI in ICE. That component explains:

HSI uses a three-prong approach to worksite enforcement: Compliance, through I-9 inspections, civil fines and referrals for debarment; enforcement, through the criminal arrest of employers and administrative arrest of unauthorized workers; and outreach, through the ICE Mutual Agreement between Government and Employers, or IMAGE program, to instill a culture of compliance and accountability.

Those I-9 inspections and enforcement require manpower, and resources at ICE are extremely limited. Specifically, HSI has "8,500 employees, 6,500 special agents and 700 intelligence analysts assigned to 200 cities throughout the United States and 45 countries internationally."

And those employees and agents have a long list of responsibilities. ICE's "Career" webpage explains the many and various duties of that component:

HSI is the principal investigative component of [DHS]. ... HSI's international presence represents DHS' largest investigative law enforcement presence abroad. HSI conducts transnational criminal investigations that protect the U.S. against threats to its national security and brings to justice those seeking to exploit U.S. customs and immigration laws worldwide. HSI has broad legal authority to investigate all types of cross-border criminal activity.

"Worksite enforcement" is an element of "bring[ing] to justice those seeking to exploit U.S. customs and immigration laws worldwide", but so are a number of other HSI activities, including the dismantling of human smuggling and trafficking rings.

Trump on Worksite Enforcement

The Trump administration has significantly beefed up enforcement of the immigration laws against employers of illegal aliens, at least according to the latest statistics, but more could be done.

Biden's campaign website explains that "the Obama-Biden administration ... issued guidance designed to end mass work-place raids." That policy changed significantly under the Trump administration, as the Migration Policy Institute explained in January 2018.

In FY 2018 (the last year for which I can find numbers), HSI opened 6,848 worksite investigations (a 405 percent increase over FY 2017), and made 779 criminal and 1,525 administrative worksite-related arrests (as opposed to 139 and 172, respectively, the year before). Impressive, but again consider that there are millions of employers in the United States.

That said, a number of the latest HSI worksite investigations have been large-scale, and high-profile. In August 2019, for example, ICE executed search warrants at seven agricultural processing plants across Mississippi, arresting 608 aliens unlawfully present in the United States — the largest single-state worksite enforcement action ever. This August, DOJ announced that four criminal indictments had been handed down in connection with that operation, and I anticipate that more are in the pipeline.

Such prosecutions send a message to crooked employers (and in particular, crooked mid-level management at those employers) that they, too, should follow the law or run the risk of facing jail time.

There is more that Trump could do, though, even given HSI's limited resources.

For example, the president promoted E-Verify in his 2016 campaign, and in his proposed FY 2019 budget, the president requested $23 million to expand E-Verify and make it mandatory. A red-hot pre-pandemic employment market made many Republican Senators and members of Congress leery of such a proposal, however, and E-Verify was subsequently placed on the back burner.

Much has changed in the past year, with unemployment soaring as a result of Wuhan coronavirus shutdowns. And as I explained in a December 2018 post, President Trump could make E-Verify mandatory by providing Congress 60 days' notice before doing so. Thus far, he has not.

Would that vitiate the need for HSI agents to perform audits and physical inspections of workplaces? No. But it would make their job a whole lot easier, and enable it to focus on the most likely — and egregious — offenders.

Biden on Worksite Enforcement

Biden is clear that he opposes HSI operations, such as the ones in Mississippi, which he deems "workplace raids based on workers' status" on his campaign website. Nonetheless, he promises to "hold[] employers accountable if they don't play by the rules," but does not explain exactly how he plans to do so absent worksite enforcement operations, except to state that he:

[W]ill work with Congress to ensure that employers are not taking advantage of immigrant workers and that U.S. citizen workers are not being undercut by employers who don't play by the rules. Biden will also work to ensure employers have the right tools to certify their workers' employment status and will restore the focus on abusive employers instead of on the vulnerable workers they are exploiting.

It is unclear if, by "ensur[ing] that employers have the right tools to certify their workers' employment status", the candidate means that he will mandate E-Verify. If he is, though, he is only doing so elliptically, as neither his campaign website nor the "Unity" document mention that program by name.

The Biden-Sanders "Unity" document is even more strident as it relates to limits on worksite enforcement, decrying what it describes as "militarized raids on our workplaces", and vowing to "sanction employers, not workers" (again, without explaining expressly how).

It continues: "We will ensure that enforcement mechanisms are humane and consistent with our values and international humanitarian obligations. That's why we will end workplace and community raids."

Why does the former vice president promise to end what he describes as "raids"? Both Biden's campaign website and the "Unity" document contend that doing so would "ensure that threats based on workers' status do not interfere with their ability to organize and improve their wages and working conditions."

Two Points Are in Order

First, employers who hire illegal workers are often (if not usually) violating other labor laws, including those related to health and safety, as I recently explained. In fact, the hiring of an illegal workforce is frequently a part of those employers' business plans to deprive their employees of the safe workplaces that U.S. labor laws are meant to ensure.

How does that work? I would argue (as I have in the past) that even absent any worksite enforcement at all by ICE, crooked employers would continue to threaten their illegal workers into compliance with their illicit (and potentially hazardous) business practices. Illegal workers, especially new immigrants, are usually unfamiliar with American law generally (and U.S. safety codes in particular), and are willing to work at a lower rate and in less-safe conditions than their lawfully present counterparts.

There is a reason that the Mississippi worksite operation opened up jobs for American workers, as I explained in a January post. Simply put, immigration violations at the worksite do not exist in a bubble, and (in my words) "Illegal Immigration Abets the Exploitation of Workers."

Moreover, having handled worksite cases for the former INS, I would note that worksite arrests often net witnesses who assist the government in going after unscrupulous employers — a critical component in prosecuting a non-law-abiding employer.

In apparent lieu of such arrests, the "Unity" document promises to extend nonimmigrant U-visa protections to "victims of any workplace violations of federal, state, or local labor law by securing passage of the POWER Act", H.R. 5225 in the House and S. 2929 in the Senate. Those bills would provide both temporary and permanent protection to certain workers involved in a workplace claim who reasonably fear or have actually been threatened with force, physical restraint, retaliation, or what it deems "abuse of the immigration or other legal process against the alien or another person by the employer."

Second, the INA does not focus on the ability of all workers in the United States to "improve their wages and working conditions", only on lawfully present workers, the purpose behind the labor restrictions in section 212(a)(5) of the INA. It is difficult to understand exactly how Biden plans to enforce the immigration laws to protect the wages and working conditions of American workers.

The Biden campaign website does state that the candidate will "incentivize workers and employers to operate within legal channels" by reforming the temporary visa system. Again, however, he fails to explain how he will do so without dampening wages for American workers.

Summary

The worksite employment provisions in the INA empower ICE to investigate, charge, and prosecute unscrupulous employers in the United States who have hired aliens who are not authorized to work in this country. This protects the wages and working conditions of American workers — that is, U.S. citizens, nationals, and lawfully admitted immigrants.

ICE's HSI branch is responsible for worksite enforcement. HSI has expanded its worksite enforcement efforts to a significant degree under the Trump administration. That has included large-scale enforcement operations, at least one of which has led to criminal indictments.

The president has failed thus far, however, to make the E-Verify system mandatory, although he has touted the program in the past and has the executive power to mandate its use. E-Verify enables employers in almost real time to determine whether new employees are employment-authorized. If fully implemented, E-Verify would have a huge impact in deterring the employment of unauthorized workers in the United States.

Former Vice President Biden has not been specific as to what he plans to do to curb the illegal employment of aliens in the United States, short of ending what he describes as "workplace raids based on workers' status". His campaign website notes that "the Obama-Biden administration . . . issued guidance designed to end mass work-place raids", and it appears that the former vice president plans to build on those restrictions if elected president.

He promises to "incentivize workers and employers to operate within legal channels" by reforming the temporary visa system, but fails to explain how he will do so generally, and how he will do so without dampening the wages of American workers in particular.

Employees in the workplace are generally subject to the same protections under U.S. labor laws, with the obvious exception of the employment provisions in the INA. Biden's campaign documents, as a whole, indicate that the former vice president is much more focused on protecting the rights of workers in general — including those unlawfully present — than enforcing the immigration laws in the workplace. It is doubtful, however, whether he can do the former at the same time that he is limiting the latter.

Worksite enforcement is crucial to the functioning of the immigration system as a whole, and to the support of the American people for immigration, as Barbara Jordan explained in September 1994:

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.

The two candidates have very different visions for how such enforcement will occur, likely with very different outcomes for American workers and the future of immigration itself.