PHOENIX — It's a topic often lost in the heated battle over whether to add more border patrol agents, build a bigger fence, or deploy the US military along the border with Mexico. But in the end, most analysts agree, the United States can't stem the flow of illegal immigrants until it resolves to do one thing: punish employers who hire them.
Current law provides for sanctions against such employers, and legislation now under consideration in Congress would stiffen employer penalties.
The tougher provisions are not lost on companies here in Arizona, which now has more illegal immigrants crossing its border than any other state and which owes its decades-long growth spurt in part to a huge workforce - at least 12 percent - of undocumented laborers.
But federal enforcement has long been so weak, and employer fines so few and far between, that many here still laugh off the prospect of serious sanctions - though the laughs are a little more nervous now.
"There's a pretty universal consensus that this is the single largest missing point of our enforcement regime," says Marc Rosenblum, a visiting scholar at the Migration Policy Institute, an independent think tank in Washington that tracks the worldwide movement of people. "But there's never been enough commitment or resources thrown at it. The bills being considered now would go a long way toward addressing that problem."
The Immigration Reform and Control Act (IRCA), enacted in 1986, requires employers to verify that prospective employees are either US citizens or authorized to work here. But rather than mandate a national identity card - because of privacy reasons - the legislation gives employers wide latitude in determining eligibility. Workers can offer employers at least 25 different documents to prove they are authorized to work in the US.
"The law has been so difficult to enforce that the number of cases brought against employers is about half what it was a decade ago even though the number of unauthorized workers has roughly doubled in that time," a Pew Research Center report concluded last month.
One local businessman, who wishes to remain anonymous, knows firsthand the weaknesses in the enforcement regime. He owned a large landscape business for more than two decades in which he employed up to 300 people at a time, most of whom were Latino immigrants.
His human resource department checked the documents of prospective employees and filled out the IRCA-required I-9 forms. "The quality of the documents varied quite a bit from being very, very good in terms of forgeries to the point of some pretty strange looking things, like misspelled names on social security cards," says the businessman. "The problem is where do you draw the line? And to what extent do we [employers] need to become experts in counterfeiting?"
He says the then Immigration and Naturalization Service (INS) audited his business three times during the 1990s. Each time, he lost more than half his workforce, but never received a fine because "we did a good job of filling out all the paperwork."
"It became almost humorous that every time they came in, we knew we'd lose a bunch of people, but gradually we'd hire other ones, and that was just the way of doing business," he says.
The INS is now the US Citizenship and Immigration Services.
"Everyone knew" some workers were illegal immigrants, says a young man who has supervised wait staffs at three Phoenix-area establishments. One had a bunkhouse where "no fewer than 10 illegal immigrants lived at a time."
So when the INS raided that establishment in the mid-1990s, "we lost over half the workers that night and had to close early," he says. "But within a week, they hired a whole new staff of illegals." There was no fine.
"The promise of IRCA was that with the penalization of employers there was an assumption the demand would dry up and that the pull factor would diminish," says Louis DeSipio, professor of Chicano/Latino studies at the University of California at Irvine. "But in practice it became evident by the late 1980s that the INS wasn't making interior enforcement too much of a priority, and employers frequently had a good excuse for violating the law because so many illegal documents became available."
In fact, the emphasis peaked in that period with the INS spending about 5 percent of its budget on work-site enforcement, says Mr. Rosenblum, then began to lag behind other priorities.
Since the 9/11 attacks, there has been even less focus on interior investigations. The government formed the Department of Homeland Security, which took in INS and made Immigration and Customs Enforcement (ICE), responsible for interior investigations, but they've focused much more intently on border enforcement.) In fiscal 2004, ICE issued three notices of its intent to fine a business for hiring illegal immigrants - down from 417 five years earlier, according to a 2005 report by the Government Accountability Office.
But the bills currently wending their way through the Senate, and the one passed by the House, are likely to beef up work-site enforcement. Any final version is likely to make mandatory today's voluntary employment-verification program. Moreover, the bills call for an increase from 50 to up to 5,000 ICE agents who monitor work sites and significant increases in the fines, and perhaps jail time, for employers who break the law.
"I don't think employer enforcement alone will stop illegal immigration," says Dr. DeSipio. "But it will decrease the incentive for a new migrant who doesn't have family here. That person wouldn't take the risk if he/she didn't have the confidence that he/she could move directly into a job."