It would be an understatement to observe there’s a lot of consternation over the Trump administration’s current “mass deportation” regime, which focuses on individual arrests of removable aliens (many, but not all, criminals). But here’s a better option if you support large-scale removals: “employer sanctions”, or as my colleague Mark Krikorian refers to it, “briefcase enforcement”, targeting the businesses supporting the otherwise “undocumented” population. It’s time for ICE to call out its own team of “Untouchables” and unleash a much more politically palatable brand of enforcement.
The Immigration Reform and Control Act of 1986
The Immigration Reform and Control Act of 1986 (IRCA) is best remembered as the Reagan-era law that provided amnesty to about three million aliens unlawfully present in the United States at the time.
That was Title II in the bill, and the amnesty was passed on the promise that “legalization” was a “one and done” proposition, because IRCA would also eliminate the “employment magnet” drawing aliens to come illegally.
Specifically, Title I, part A of IRCA amended the Immigration and Nationality Act (INA) to:
make it unlawful for a person or other entity to: (1) hire (including through subcontractors), recruit, or refer for a fee for U.S. employment any alien knowing that such person is unauthorized to work, or any person without verifying his or her work status; or (2) continue to employ an alien knowing of such person's unauthorized work status.
That provision is now codified at section 274A of the INA, and if you have been hired at any point to work in this country in the past four decades you’ve participated in that process, whether you know it or not.
Specifically, section 274A(b) of the INA created an “employment verification system” that every “person or other entity hiring, recruiting, or referring an individual for employment in the United States” must comply with.
Employers begin that process by requiring new hires to complete a Form I-9, captioned “Employment Eligibility Verification”.
In section 1 of the Form I-9, employees must show they are eligible to work in this country by providing basic information (name, date of birth, Social Security number, etc.) and by attesting they fall within one of four work-eligible categories: (1) U.S. citizen; (2) noncitizen national (people born in American Samoa or Swain’s Island); (3) green-card holder (formally “lawful permanent resident”); or (4) “an alien authorized to work” with a USCIS-issued employment authorization document (EAD).
Employers, in section 2 of the Form I-9, must then verify they’ve examined documents new hires have offered to establish they fall within one of those four employment-eligible categories, and then certify they have done so under pain of prosecution.
“Worksite Enforcement”
The employers’ obligations do not end there, however, because they must then retain that form until the latter of three years after the new employee is hired or one year after the worker leaves, and (this is key) present those documents to immigration officers upon request.
ICE agents request those Forms I-9 (and any attached copies of the employment documents presented) by sending the employer a “Notice of Inspection” (NOI), which gives the business three days to compile the records and make them available for agency review.
Agents then review those forms and compare the information and documents presented in the Form I-9 process to other government records (such as Social Security and state driver’s licenses databases and DHS repositories) and to the employer’s own records to identify anyone who obtained employment fraudulently or is working “off the books”.
At that point, ICE can ask the employer for permission to talk to the questionable workers to resolve any concerns (and make arrests), or alternatively, agents can seek what’s known as a “Blackie’s warrant” to search the worksite and take custody of those here unlawfully.
As my colleague Dan Cadman explained a decade ago:
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”, according to DHS, “is that there is no need to specifically name the aliens being sought.” To the contrary, the department continues, “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” (emphasis added).
And a passel of Forms I-9 with fake or fraudulent Social Security or alien numbers, or that reference non-existent EADs or driver’s licenses, provides more than “a plausible basis for believing that there are unnamed illegal aliens present at the location to be searched”.
“Briefcase Enforcement”
Having been the INS “employer sanctions” counsel in San Francisco (where I had responsibility for two-thirds of the Golden State) and Baltimore, I can assure you that both the 1-9 review and the Blackie’s warrant-application processes are painstaking and laborious work (hence “briefcase enforcement”).
But agents don’t (generally) need tactical gear when they perform paperwork audits (civvies are fine; a jacket and tie are even better) and can gear their attire to any reasonable dangers they may encounter when entering the workplace to execute a Blackie’s warrant.
Moreover, the likelihood agents will be hounded by “constitutional observers” wielding placards and whistles can be minimized if the agency performs either the audit or the warrant execution properly and professionally.
Due process is baked into both of those processes, in the case of an audit when agency attorneys file a “Notice of Intent to Fine” (NIF) with an administrative law judge (ALJ) in the DOJ’s Office of the Chief Administrative Hearing Officer (OCAHO), and following the service of a Blackie’s warrant when agents file a “return of warrant” and inventory with the issuing judge or magistrate.
Fines and Penalties
Not surprisingly, there are a number of civil and criminal penalties the agency can seek to impose on employers who knowingly hire illegal aliens or fail to properly complete their I-9s, and as one immigration practitioner has noted, “A ‘good faith’ defense is available to employers for technical or procedural violations, but not for substantive ones.”
Penalties for substantive Form I-9 violations range from a minimum fine of just less than $300 to a maximum one of nearly $2,800, while a “knowingly hire” fine can run you between a minimum of nearly $700 (for a first offense) to a maximum of almost $28,000 (for a third or subsequent offense) — per employee.
“That’s real, post-tax money” as one OCAHO ALJ reminded me, but a statutory criminal penalty of up to “$3,000 for each unauthorized alien” employed in a pattern or practice of unlawful hiring under section 274A of the INA and up to six months in jail is probably more likely to concentrate the mind.
For many employers, however, the most significant penalty is one not provided for by statute: losing part or all an employer’s workforce, with all the attendant business losses resulting therefrom.
Depending on how you look at it, six months in federal custody is a temporary impediment compared to bankruptcy, especially when the bulk of the employer’s wealth is tied up in the business (or the company has shareholders to answer to).
Twice the Bang for the Government’s Buck
Employer sanctions also have the benefit of providing twice the bang for the government’s buck; not only can ICE take custody of many removable aliens at once, but DOJ can also seek court orders “requesting relief, including a permanent or temporary injunction, restraining order, or other order against” employers.
Such orders make it infinitely less likely other unauthorized aliens will be able to find work at sanctioned worksites, and if ICE spreads its NOIs and NIFs around all the employers in a given industry and in a given area, and DOJ presses the issue, the illicit employment market in a variety of industries will dry up fast.
“Briefcase enforcement” isn’t glamorous, but it’s more effective than “body armor enforcement”, which requires teams of ICE officers searching for a single alien at a time, and a lot more politically palatable. The feds didn’t nab Al Capone in a shootout; they nailed him on tax paperwork. Time for ICE to take a cue from Eliot Ness.