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Law

Target shift

Feds to focus on employers of illegal workers

MT photo: Sandra Svoboda
Khaalid Walls at U.S. Immigration and Customs Enforcement says priorities have changed under President Obama.
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Published 12/2/2009

As an attorney advising southeast Michigan businesses, Aimee Guthat has worked with hundreds of companies that hire foreign workers in industries ranging from agriculture to information technology.

This year, with a new U.S. president has also come a new way of ensuring a legal work force at those businesses. 

"With the Bush administration, the focus was really on enforcement with respect to the actual foreign nationals," says Guthat, a lawyer with the Troy office of the international Fragomen law firm. "Now the focus is on looking at employers and focusing the enforcement actions on companies to make sure they're compliant and abiding by the law."

In other words the federal government is moving away from the highly publicized raids of worksites that result in roundups of workers and toward investigating and penalizing employers who benefit from undocumented workers.

Department of Homeland Security Secretary Janet Napolitano rolled out the refocused enforcement program in April when she announced revised priorities that would target employers, specifically reviewing their records of employees to check for compliance with federal regulations as well as to ensure the legal status of workers.

In July, agents and auditors from Immigration and Customs Enforcement inspected 654 businesses' records, including 26 in Michigan. Last month, Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton announced audits of another 1,000 workplaces that will include about two dozen in Michigan.

The businesses chosen are "associated with critical infrastructure," Morton says, and include health care, agriculture, transportation and other federal contractors. They were chosen from tips, investigative leads or because of a "connection to public safety." Individual company names were not released. The audits ensure employers have accurate employee records, are hiring a legal work force and are complying with federal employment verification rules.

Of the 26 Michigan companies audited in July, 14 were in compliance, another six were in violation and six have cases with conclusions pending, says Khaalid Walls, spokesman for ICE in Detroit.

"The most common problem on the form is false information, such as wrong names, wrong birthdays and other identifying information," he says.

Employers aren't instantly fined for innocent mistakes, Walls says. "We don't expect employers to be fake document experts," Walls says. "We'll go in and make a decision on a case-by-case basis." 

When innocent errors are found, ICE will oversee an improved process at the company, Walls says. But businesses that knowingly hire unauthorized workers or have repeated violations of other federal laws can be assessed fines. 

Of the 654 audits in July, ICE has issued notices of intent to fine 142 companies for a total of $15.9 million. Officials are still considering fines in another 267 cases.

By comparison, ICE says, in all of 2008, just 500 audits were done resulting in 32 proposed fines totaling $2.4 million.

Individual companies facing penalties from the July audits or chosen for the new round were not named, though Fragomen had a few Michigan clients and several nationally audited. 

In about six months, Walls says, ICE will release more information about specific companies involved. "We are expecting to announce a significant amount of findings from this batch." 

The audits represent a change in focus: punishing employers who knowingly benefit from hiring undocumented workers instead of simply arresting, detaining, fining or deporting the workers. It's a different philosophy from what prevailed during the Bush administration, and it's a change the Obama administration and its supporters are touting.

"We're really in this to change the national enforcement perspective," Morton says. "If we're going to do that, we're going to have to create a culture of compliance."

Focusing enforcement measures on employers instead of employees is seen by many to be a more effective approach.

"If companies are penalized for not maintaining the documentation, for not verifying the employment authorization of their workers properly, that will reduce the occurrence of illegal immigration," Guthat says.

David Koelsch, professor of law and director of the immigration law clinic at University of Detroit Mercy, praises the strategy. 

"Frankly, it's about time the government got serious about undocumented workers. The new strategy is a refreshing change in tactics from always going after the little guy to taking on the big players who benefit most from undocumented workers," he says. "With record unemployment in Michigan, employers who hire undocumented workers over legal residents and citizens are committing economic treason."

But Bob Dane, spokesman for the Federation for American Immigration Reform, a Washington D.C.-based organization that favors limiting immigration and improving border security, says the audits are window dressing that the Obama administration will use to style its eventual push for amnesty for immigrants who are here illegally. The administration needs to appease those who are seeking better compliance with immigration laws, Dane says, and the audits are a way to try to do that.

"They've got to convince America that they're focused on immigration enforcement, but in fact they're merely looking tough. Behind the scenes they're dismantling enforcement and laying the groundwork for amnesty," he says.

FAIR plans a Dec. 9 news conference to review the Obama administration's immigration policies and how immigration might play into the 2010 congressional elections. "We're taking a look at where we've been and where we're heading," Dane says.

Similarly, the more immigrant-friendly Immigration and Policy Center in Washington, D.C., is monitoring the audits and the administration, but with hopes for a result more favorable to immigrants and employees, says Michele Waslin, senior policy analyst at the Center. "We're monitoring how the audits are being carried out and the penalties levied on employers, and we will track what happens to workers in the companies — both U.S. and foreign-born," she says. "We are assessing the balance between the administration's focus on punishing employers versus how hard they push for comprehensive immigration reform."

Sandra Svoboda is a Metro Times staff writer. Contact her at 313-202-8015 or ssvoboda@metrotimes.com.

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