Employers Wonder: INS, Where Is Thy Sting?

Southern California garment industry leaders are surprised that they have not yet felt the sting of the massive federal enforcement effort against employers who hire illegal immigrants.

They say that some warning notices, but few if any fines, have been issued in the industry, long a magnet of immigrant labor. About 720 fines have been levied across the country, most of them since June, the beginning of full enforcement of employer sanctions established by the 1986 Immigration Reform and Control Act.

Government officials, however, say they are succeeding without Draconian measures. They point out that 94% of employers randomly selected for audits by the U.S. Immigration and Naturalization Service have been found to be in compliance or at least making a “good-faith” effort to comply.

‘Balanced’ Approach

John Schroeder, assistant INS commissioner, said the agency is confident that a “balanced” enforcement approach--an emphasis on educating employers and on punishing the most flagrant violators--is working. “We feel our educational endeavors have paid tremendous dividends in getting people to comply,” he said.

“If we started kicking doors down and implemented Gestapo-type tactics, we would lose everything we’ve tried to achieve through voluntary compliance up to now,” he said. “We don’t want to turn this into an unpopular law.”

But some business leaders, while approving of what one called a “kid gloves” approach aimed at encouraging voluntary compliance, are skeptical that this will last. And those already hit by the first wave of fines--predominantly service industry employers--question the fairness of the INS’ methods.

“Everybody’s waiting for the other shoe to drop,” said Adolfo Mendez, director of the western division of the American Apparel Manufacturers’ Assn. “We’re afraid once the honeymoon is over, the INS will go back to their traditional enforcement tools--raids. . . . People don’t change overnight and INS is surely not changing overnight.”

The significance of the 94% compliance rate is difficult to assess, as there is little to compare it with, Schroeder acknowledged.

Maurice Roberts, editor of Interpreter Releases, a national immigration journal based in Washington, said he was “shocked” by the reported high rate of compliance. An earlier survey, based on spot checks by Department of Labor investigators, indicated that only a third of the nation’s employers were in full compliance shortly after the program began.

If the more recent INS figures are accurate, Roberts said, “it would seem . . . that the purpose of the law had already been achieved.”

Some employers and immigration lawyers nevertheless complain of heavy-handedness by INS agents and a lack of consistency in enforcement throughout the country. Many complain that small businesses appear to be bearing the brunt of the fines, though officials say that this is to be expected because small business has traditionally been the biggest employer of illegal workers.

Anticipating that the law’s employer record-keeping requirements would usher in a new era, some employers complain that the INS continues to use older, more disruptive enforcement tools, such as search warrants and raids.

INS spokesman Duke Austin in Washington said that it is unrealistic to expect complete consistency from any federal agency. “This is not unique with immigration,” he said. He added that fines in similar situations may vary based on circumstance and local discretion.

All the Tools

Austin also said that the agency will continue to use all the tools at its disposal, including investigations, subpoenas, warrants and raids. “That’s the business of police work,” he said. “We’ve never hamstrung ourselves.”

The employer sanctions provisions of the law, which also granted amnesty to about 2 million illegal immigrants, are aimed at curbing the flow of illegal aliens into the country by making it a crime to employ them. First offenses can result in fines of $250 to $2,000 per illegal worker. Repeat offenders risk fines of up to $10,000 per worker and six months in jail.

During the first year of enforcement, agents visited about 1 million employers, instructing them in how to comply with the law and how to fill out the “I-9” forms that employers are required to keep on file, documenting the legal status of each worker.

Although more fines are now being assessed, education remains a key element of INS policy, officials say. Charles Midby, of the INS’ northern region, which covers 20 states, said the effort has succeeded in persuading “many employers that we are not an adversary but merely trying to help them to do things right.”

A report to be released next month by the General Accounting Office has found, however, that too many employers are still in the dark about the law’s requirements, according to several sources.

“Indications are that we’ve done a good job reaching larger employers . . . but that we need to intensify our efforts at reaching smaller ones. And we’ve started to do that,” Midby said.

To ensure that the law is applied equally, the government has established a random selection system for targeting employers. They are picked at random from a pool of about 5 million firms.

But by late last month, one of four INS regions had yet to implement the system, and most of the others were still relying more heavily on their own investigative leads to pursue employers.

In the four-state western region, which includes California, more than 63% of the fines have been imposed on service industry employers, such as restaurants, markets, hotels, landscaping and janitorial firms. About 27% have been issued to light industry employers, followed by construction and heavy industry.

Reports of inconsistencies in enforcement procedures are common.

In the Baltimore area, for instance, the focus is still on gaining voluntary compliance, according to immigration lawyers. But in neighboring Washington, located in a different INS district, agents rely more heavily on criminal warrants to arrest illegal workers, they report.

“The line preached by the central (INS) office is a good one . . . but at the local level, you have folks who frequently ignore it,” said Michael Maggio, an immigration lawyer in the area. He said that while the Baltimore office “seems to be doing everything by the book . . . the cowboys are riding high in D.C.”

The first criminal charges in the country for “a pattern or practice” of hiring illegal workers were announced Wednesday in the Washington INS District against Davco Inc., a Maryland food company. Owners of the company, which operates 106 Wendy’s restaurants, including some in the Washington area, faced up to six months in jail for each of at least 17 illegal workers apprehended at two of their locales. The criminal penalties were dropped, however, when the company agreed to plead guilty and pay a $60,000 fine.

‘Unfortunate’ Exceptions

A spokeswoman for a national chain of 183 Mexican restaurants, who gives INS high marks for “professionalism,” nevertheless voiced concern over the “unfortunate” exceptions.

“We’ve seen a lot of inconsistency from region to region and from district to district,” said Julie Notley, personnel manager for Irvine-based El Torito Restaurants. INS audits at about a dozen company restaurants have gone smoothly, she said. But raids at two restaurants, in Miami and Vancouver, Wash., were handled “totally different,” she said.

While both raids resulted in arrests of illegal workers, Notley said that the one in Vancouver was marred by “disruption, intimidation, rudeness, humiliation” and the handcuffing of workers. The company filed a formal complaint about the raid.

“We’ve spent so much time and money to comply with the law,” Notley said, “and we don’t think it’s asking too much for INS to treat us with respect and in a professional manner.”

Former acting INS Commissioner Doris Meissner, now a senior associate with the Carnegie Endowment for International Peace, finds such reports troubling. She said that the highly decentralized agency must overcome a strong tradition of local autonomy in order to succeed. “It’s one of the things INS really has to struggle with in this program,” she said.

Also of concern, she added, is whether the INS will come to emphasize warrants and raids over I-9 audits as its primary enforcement tool. “Some people are suggesting it’s already out of balance,” she said.

Mary Pivec, a spokeswoman for the American Immigration Lawyers Assn., called the use of unannounced searches an “unfair circumvention” of the rule that employers receive three days’ notice before an INS audit of I-9 records.

Another controversial question is how extensively Border Patrol officers should be used in enforcing the immigration labor law. Critics say the use of border patrolmen, who are charged with the agency’s strongest police function, raises serious questions.

While the law’s authors never explicitly barred the use of the Border Patrol, the assumption was that the non-uniformed arm of the organization would be responsible for enforcement, Meissner said.

“My concern is that the border patrolman, by his very dress, his military uniform and holstered revolver, might be more disruptive than an immigration official in a suit checking records,” said Houston lawyer Charles C. Foster, former national president of the immigration lawyers association. “This is sort of a criminalization of the whole thing. . . .”

The INS expects to hire an additional 1,000 Border Patrol officers by the end of the year for a total force of about 4,200, Austin said. The agency also expects to double the number of INS investigators to about 1,600.

Border Patrol sectors are leading the country in number of fines assessed, Austin said. The San Diego sector, for instance, has issued 25% of the total fines levied in the four-state western region. And the southern region, with its concentration of Border Patrol personnel, is the only region in the country where more fines than warnings are being issued.

Another concern of employers is the types of violations for which they are being fined. The vast majority levied so far are for improperly filled out I-9 forms. The largest fine in the country so far--for $308,000--was levied against Ready-Man Inc., a Chicago temporary employment agency charged with hiring several illegal workers as well as with 1,500 paper work violations.

Employers complain that despite national INS guidelines that officers refrain from issuing fines based purely on paper work violations, such fines continue to be levied.

“These types of minor transgressions should be forgiven and the time spent instead on serious violators,” said Pivec of the immigration lawyers association.

Recently, INS agents in Texas broadened the ranks of employers cited for sanctions violations to include even families. A San Benito, Tex., family was fined $350 for violating employer sanctions by hiring a maid who had emigrated illegally from Mexico.

In Los Angeles, where thousands of immigrants have found work as domestics, INS investigator Gary Laverty said that families would not be targeted as part of the agency’s random compliance audits. But families that employ illegal aliens could be subject to investigations prompted by citizen complaints. “Each office has its own priorities,” he said.

The vast majority of fines have been settled out of court, most for substantially less than initially set. The fine against the Chicago employment agency, for instance, was reduced to $60,000 through negotiation.

Some lawyers argue that the reason so few of the fines have been contested is that most have been assessed against relatively small companies who cannot afford the legal fees.

INS officials say they have not kept records of the size of firms fined, but they add that the nation’s larger firms have generally been the first to comply with the law.

Bad Publicity Shunned

“They don’t want the bad publicity associated with immigration problems,” said Robert Moschorak, the INS’ western region associate commissioner. From the start, he added, large corporations sent their personnel department representatives to the INS to receive instructions in how to comply with the law.

But lawyers insist that the agency is being less than even-handed, noting also that service industry employers have been disproportionately targeted.

“What we’re seeing is that they’re going after the easy ones, the restaurants, the small businesses . . . not the AT&Ts;,” said Hope M. Frye, an immigration lawyer in Cincinnati. “They’ve gone after the easily exposed targets. The question that must be raised is whether that is fair.”