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January 2010, Volume 16, Number 1

DHS Enforcement

The US Department of Homeland Security (DHS) has a $43 billion budget for FY10. DHS's Immigration and Customs Enforcement agency (ICE) received $5.4 billion, including $139 million for worksite enforcement investigations. E-Verify was extended for three years, and DHS now allows US employers who participate in the E-Verify system to place a logo "I E-Verify" on their products or services.

Border. The number of foreigners apprehended by the Border Patrol fell to 556,000 in FY09, down from 792,000 in FY08 (peak apprehension years were 1986 and 2000, with 1.8 million each year). The US had 20,000 Border Patrol agents at the end of 2009.

Interior. DHS's Immigration and Customs Enforcement agency audited 654 employers in summer 2009, and announced plans to fine 61 by November 2009, when another audit of 1,000 employers was announced. ICE is trying to keep unauthorized workers out of jobs by auditing the I-9 forms that employers and newly hired workers complete to demonstrate that there are enforcement tools other than workplace raids, which were a prominent feature of ICE activities in 2007-08.

ICE audits fulfill a pledge made by DHS Secretary Napolitano to penalize employers who hire unauthorized workers and open jobs for US workers. She said that ICE has "transformed worksite enforcement to address the demand side of illegal immigration." ICE agents are instructed to focus on employers "who abuse and exploit their workers, aid in the smuggling or trafficking of aliens into the United States, create false identity documents or facilitate document fraud, or create an entire business model using an unauthorized workforce."

NELP. ICE was criticized in a report released on October 27, 2009 by the National Employment Law Project for undermining workers' rights with workplace enforcement. NELP charged that ICE targets unauthorized workers rather than the employers who hire them. In FY08, only 2.1 percent of the 6,287 criminal (1,103) and administrative (5,184) arrests for immigration offenses at workplaces involved employers or managers.

The report urged a "recalibration" of the balance between worksite immigration enforcement and labor standards enforcement. In 1998, DOL and ICE's predecessor in the Immigration and Naturalization Service signed an MOU to establish a "firewall" between labor and immigration enforcement, meaning no immigration enforcement actions during labor law inspections and union organizing and strikes. The report concludes that this firewall was breached, especially after immigration reform failed in the Senate in June 2007, by a Bush administration intent on inflicting pain on employers so that they would support reform.

The report reviews instances of ICE enforcement "interfering" with labor law inspection. At Agriprocessors in Postville, Iowa, a 2008 ICE raid led to the arrest of hundreds of workers after the United Food and Commercial Workers union informed ICE that it was in the midst of a union-organizing campaign. ICE knew of these ongoing federal and state investigations of labor law violations, but mounted the raid; several managers were also arrested.

The report provided several examples. On April 16, 2009, ICE raided Pilgrim's Pride poultry plants in five states, including one in Tennessee in which targeted workers were called by the employer into a lunch room for "fire safety" training to be arrested by ICE agents.

The United Steelworkers, which was trying to get Pilgrim's Pride workers to join the union (Tennessee is a right-to-work state), argued that workers saw the raid as retaliation for a suit alleging that they were not paid for donning and doffing safety equipment.

In Portland, Oregon, ICE raided Del Monte Fresh Foods on June 12, 2007 and arrested 167 workers. The report noted that some workers considered the raid retaliation for eight former employees who settled an unpaid wages suit against Del Monte in August 2006 for $400,000.

The report concluded that comprehensive immigration reform is the best solution to tension between labor and immigration enforcement. Until immigration reform is accomplished, the report asked ICE to refrain from enforcement efforts, including audits of the I-9 forms completed by newly-hired workers and their employers, if enforcement would deter workers from organizing unions or asserting their labor rights.

Federal labor laws such as the National Labor Relations Act, the Fair Labor Standards Act, and anti-discrimination laws clearly protect unauthorized workers. The 2002 US Supreme Court's Hoffman Plastics decision (535 U.S. 137) reaffirmed that all workers are protected by labor laws such as minimum wage and union organizing laws, but nonetheless concluded that an unauthorized worker unlawfully fired by Hoffman for helping to organize a union was not eligible for the usual remedy of reinstatement and back pay because such a remedy would "unduly entrench upon" federal immigration policy.

One result of the Hoffman decision is that employers routinely investigate the legal status of workers who file charges of labor law violations. Worker advocates say that such investigations intimidate workers, who often find their credibility in filing labor charges challenged if they used false documents to get the job.

The NELP report concluded that ICE workplace raids helped employers to intimidate workers. However, other analysts during a November 19, 2009 forum argued that ICE workplace raids open jobs for US workers. An analysis by the Center for Immigration Studies (CIS) of workplace raids at meatpacker Swift in December 2006 and Smithfield in January 2007 found that both firms raised wages and bonuses to attract legal workers after unauthorized workers were removed; full production resumed in four to five months. At Smithfield, Blacks replaced Hispanics and likely helped the United Food and Commercial Workers win an election to represent workers.

E-Verify. DHS's Citizenship and Immigration Services operates the E-Verify system. It allows employers to check the legal status of newly hired workers against government data bases using the documentation that the workers provide, but cannot detect whether the documentation rightfully belongs to the worker presenting it. Participation for most US employers is voluntary, but federal contractors and employers in states such as Arizona are required to use E-Verify to check new hires.

Individuals have eight days to correct their information if E-Verify does not confirm their right to work. USCIS plans a program in 2010 that allows workers to check on their legal status themselves.

As of December 2009, some 175,000 employers were enrolled in E-Verify, which handled 8.5 million queries from employers in FY09 and 2.5 million in the first quarter of FY10.

Smith Rebecca, et al 2009. ICEd Out: How Immigration Enforcement Has Interfered With Workers' Rights. NELP. October.

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