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April 1999, Volume 5, Number 2

INS: Raids, Do Not Hire

Fewer Workplace Raids. The INS announced in March 1999 that it was
adopting a new interior enforcement strategy, de-emphasizing workplace raids,
and instead concentrating on removing criminal aliens and cracking down on
alien smuggling rings and document counterfeiters. INS officials say that
their top priorities are: (1) to remove criminal aliens from the US; and (2) to
find and prosecute alien smugglers.

INS plans to evaluate the effectiveness of its new interior enforcement
strategy by examining: (1) trends in wages in industries that typically hire
illegal immigrants; (2) local crime rates; and (3) trends in the cost of
smuggling aliens or obtaining fraudulent immigration documents.

The INS has been reducing the number of workplace raids, especially after
controversy arose over the actions of some INS agents. For example, on April
23, 1998, a raid at First Paragon Floral in Miami resulted in the arrest of 23
workers, but three were found to be legal immigrants and another eight were
eligible for work permits. During the raid, some workers were held in cold
storage facilities. The resulting furor over inhumane treatment led to
requirements that each INS office develop a written plan for each worksite raid
and direction from INS headquarters to emphasize anti-smuggling rather than
employer sanctions enforcement.

Workplace raids tend to unite employers, unions and migrant advocates
against the INS, and do not result in the removal of many aliens, or in changes
to employer or worker behavior. In FY98, 44,474 foreigners were apprehended in
workplace raids; the US unauthorized work force is believed to be four to five
million.

The new INS philosophy was expressed by Joe Greene, INS district director
in Denver and author of the new interior enforcement strategy, who said that
"80 to 85 percent of employers really want to comply with this law [employer
sanctions], so let's help them do that."

There continue to be workplace raids. A workplace raid in Delmarva, in
March 1999 removed 46 poultry workers from Chestertown Foods Inc.--the workers
were provided to Chestertown Foods by a labor contractor, Chester Labor
Servicing Corp.--34 of the unauthorized workers were Mexican and 12 were
Indonesian. The owners of the Blue Mountain Stone Quarry in Larimer County,
Colorado were among the first US employers who face up to 10 years in prison
and a fine of up to $250,000 for harboring and employing undocumented migrants.
A Colorado farm labor contractor was sentenced to 15 months in prison in
February 1999 for smuggling and hiring unauthorized workers.

However, no Florida farmer has been fined for hiring illegal workers for
the past three years, and no Florida farm labor contractor has been fined in
the past decade. A senior INS field manager said "We basically have ceased
worksite enforcement" in response to a lack of political support. Workplace
raids often produce complaints from agricultural and business groups and their
lawyers, ethnic lobbies and civil rights groups.

Do Not Hire. The INS is also attempting a new do-not-hire strategy
in Washington and the Midwest. The INS in Washington subpoenaed and checked
the I-9 information of employees of 13 Yakima-area apple packing plants in
January-February 1999, identified about 1,700 unauthorized workers and ordered
the plants in February-March 1999 to fire about 562 workers unless they can
clear up discrepancies in their status--the other workers quit or were let go
in seasonal layoffs.

The percentage of unauthorized workers varied from 10 to 70 percent at the
packing plants checked by INS. There are about 15,000 apple-packing workers in
Washington, most of whom earn about $8 an hour-- many are Mexican-born
women.

By issuing do-not-hire letters, the INS is hoping to get employers to fire
illegal workers, but avoid the cost of detaining and deporting the unauthorized
workers. It is not clear whether the workers who are fired will leave the
area; INS Commissioner Meissner said that the INS is trying to "really change
the dynamics, change the climate, and change the decision-making process of
these migrants." Some local residents criticized the INS for not apprehending
and deporting the illegal workers, rather than simply ordering employers to
fire them.

The INS effort to get employers to fire unauthorized workers was criticized
by employers, the Teamsters, the union trying to organize apple-packing workers
and migrant advocates. In January 1998, the Teamsters lost elections at
Stemilt Growers Inc. and Washington Fruit and Produce.

If there is consistent INS pressure on the apple industry to screen workers
for legal status, it is likely that there will be more labor-saving automation.
Bob Mathison of Stemilt Growers Inc. was quoted in the Seattle Times on January
4, 1998 as saying: "We are blessed with a bountiful labor supply. If there is
something we want done, we throw bodies at it and they cost $7.50 an hour...You
saw those people turning apples in the same direction? If we have to pay $12
an hour, those people are gone," replaced by apple-sorting machines. In the
fields, apple growers would likely increase the mechanization of pruning, and
explore the use of chemicals to thin apples, for example, eliminate some buds
so that the apples that are produced are larger. Research on both labor-saving
technologies has been slowed by an ample supply of labor.

The Yakima Chicano/Latino Coalition: (1) urged the plants to defy the INS
and not fire the workers; (2) urged Congress to give illegal apple workers
amnesty; and (3) opposed suggestions to replace the fired unauthorized workers
with nonimmigrants who might receive H-2B visas. There are about 67,000
Latinos in Yakima County, which has a population of 220,000. Latinos are over
70 percent of K-12 pupils in towns like Sunnyside, Toppenish and
Grandview.

Yakima's Catholic bishop, Carlos A. Sevilla, said "I find that to release
700 individuals from employment within a week's time is not only devastating to
the families, which will be impacted severely, but also to the civic community
as a whole." Democratic Governor Gary Locke said, "I don't support what the
INS is doing."

An INS spokesperson countered that the protests reflect "a significant
erosion of respect for federal immigration law. It is to the point where
individuals and certain business interests and other special interests have
adopted an attitude that it is their right to violate these laws, and that the
federal government is conducting some sort of persecution for simply now
enforcing what is the law of the land."

Washington asparagus farmers, who begin the six-week harvest of 22,000
acres with 6,500 workers in mid-April, worried that INS raids or do-not-hire
letters would lead to labor shortages. Washington and California each produce
about 40 percent of the US asparagus crop.

The INS has used the do-not-hire strategy in Washington before. In 1998,
the INS used the do-not-hire strategy to have 513 workers fired from
Seattle-area restaurants and hotels. In the seven-state Western INS region in
FY98, employer audits resulted in 21,217 workers being fired, with 3,929
arrested and subjected to deportation proceedings.

Washington employers did not have an experience-rated unemployment
insurance system between 1972 and 1984; all employers paid three or 3.3 percent
of base wages. Beginning in 1985, a federal law required all states to have a
maximum UI tax rate of at least 5.4 percent, which in Washington changes UI tax
rates to 0.4 to 5.4 percent. An analysis of employer responses to these
payroll tax changes found that employers: (1) were less likely to lay off
workers in seasonal downturns to avoid higher taxes; and (2) were more likely
to contest what they regarded as invalid worker claims for UI benefits.

Since 1996, the INS has offered employers the opportunity to participate in
the employment verification pilot program, which permits employers to check the
Social Security numbers of newly hired workers. Two apple warehouses are
participating.

In the midwest, the INS announced that it is expanding the Basic Pilot
employment eligibility confirmation system to Nebraska, where Operation
Vanguard is using do-not-hire letters to keep illegal workers out of the work
force in beef and pork processing. Under Basic Pilot, employers may submit
information on newly hired employees to the INS and Social Security
Administration to verify the right to work in the US. The Basic Pilot
currently operates in five states: California, Florida, Illinois, New York and
Texas.

Employers who request excess documentation are subject to fines and the
requirement that they pay back wages to unauthorized workers they did not hire.
A Los Angeles-area garment firm, Aztec Productions, that demanded an INS work
authorization document from a Latino US citizen, paid $27,000 to settle a
charge that the firm unlawfully discriminated in hiring, including $5,000 in
back pay. The man presented a driver's license and Social Security card, and
was told to return with an INS work authorization document. When he returned
with proof of US citizenship, he was told that all vacant jobs had been
filled.

The Department of Justice's office of immigration-related unfair-employment
practices, which is not part of INS, administers the anti-discrimination
provisions of IRCA. The offices says that it has collected about $1 million in
civil fines for discrimination and nearly $2 million in back pay for would-be
workers who were not hired by employers who demanded excess documents. In
1996, the law was changed to require DOJ to prove that an employer intended to
discriminate before the employer could be fined.

Sam Howe Verhovek, "New I.N.S. Tactic on Illegal Workers Puts Many Out of
Jobs," New York Times, April 2, 1999. Wendy Harris, "Warehouses Must Fire
Illegal Workers," Yakima Herald-Republic, February 14, 1999. Kim Murphy,
"Growers Struggle to Make Fruit the Apple of America's Eye," Los Angeles Times,
January 24, 1999.

 

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