Employer Sanctions: Is The INS Tired Of Playing Sisyphus?
When I was a young INS Trial Attorney 20 years ago, it was my job to represent the government in deportation and exclusion hearings. It did not take me long to learn that my task was like that of Sisyphus of the Greek legend. Sisyphus was the fellow who used all of his strength to push a huge boulder up to the peak of a mountain only to have it roll back down at the end of the day. Sisyphus would start all over again the very next morning, and the boulder would roll back down again, ad infinitum. Similarly, I would present the government's case to an Immigration Judge against some poor worker who was unlucky enough to be arrested by the dreaded "migra". The worker would either be allowed to leave the U.S. "voluntarily" or be transported, usually in a green bus, across the border. There was no doubt in my mind that a worker deported on Friday would be back at his job in Los Angeles on Monday morning, in most cases before I arrived at work at the INS.
The Immigration Reform and Control Act of 1986 (IRCA) was supposed to change the system and put some teeth into the INS's enforcement system. The argument went something like this: The "magnet" that drew illegal workers to the U.S. was jobs. If U.S. jobs were made off-limits to illegal workers, they would stop coming here illegally.
To this end, employers were required to ask workers, foreign and U.S.-born alike, to present papers to (1) prove their identity and (2) their right to work in the U.S. If employers failed to see such documents and to complete the now ubiquitous "I-9" form, they could be fined or even jailed. Over time, workers without papers would find that they could not secure employment in the U.S., employers would only hire U.S. workers, and the "illegal alien" problem would go away.
For a detailed description of the "employer sanctions" laws, see
The INS certainly tried its best to make the system work, even to the point of fining Disneyland over a quarter of a million dollars in 1994, apparently for sloppy paperwork (Query: Did Mickey, Minnie and Pluto have employment authorization?). See
Most employers were less than thrilled about their liability under IRCA. Recently, the AFL-CIO did a 180-degree about face and called for an end to employer sanctions. Silently, but surely, the INS itself has all but stopped enforcing the sanctions law. The number of employers fined by the agency dropped from 7,115 in 1998 to 178 two years later. Similarly, the number of workers arrested in INS workplace raids decreased from 13,875 in 1998 to 953 in 2000.
INS is decreasing its workplace enforcement activities because sanctions don't work. Why don't they work? Two words: Phony documents. As soon as the ink was dry on the 1986 law, a huge blackmarket in fraudulent work cards, green cards, drivers licences and social security cards was created. Employers are prohibited by the anti-discrimination section of the law from inquiring about documents that look valid. However, looking valid is not the same as being valid. It is not uncommon for those employers targeted by the INS to be told that they must immediately terminate 30-50% of their workforce even though the employers were in total compliance of the law.
What happens to the workers? In many cases, they are hired by the employer's competitors, and use the same phony papers to complete the I-9 process. Who benefits? No one.
It is clear that the INS is tired of playing Sisyphus. Maybe, it is time for Congress to reconsider the law.
About The Author
Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California