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The key to successful immigration enforcement may be to let the Labor Department handle it.

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By Nolan Rappaport and Prakash Khatri

INDY.IM

Most of the immigrants who enter the United States unlawfully or overstay temporary visas come here to find employment. The shorthand description of this situation is that they are drawn here by the “job magnet.” On November 3, 2016, Pew Research Center estimated that in FY2014, there were 8 million undocumented immigrants in the United States who were working or looking for work.

The significance of the job magnet was recognized by the congressmen who negotiated the last comprehensive immigration reform bill 30 years ago, the Immigration Reform and Control Act of 1986 (IRCA). The Democrats were insisting on a legalization program to grant lawful status to the undocumented immigrants who were already in the United States. The Republicans were willing to accept a legalization program but only if the Democrats agreed to an interior enforcement program that would stop illegal immigration and prevent a new group of undocumented immigrants from taking the place of the ones being legalized. It was thought that this could be accomplished by establishing sanctions to punish employers who hire immigrants who are not authorized to work in the United States, which would reduce the power of the job magnet.

IRCA established section 274A of the Immigration and Nationality Act, which prohibits employers from employing immigrants they know are not authorized to work. An employer found to have engaged in hiring, recruiting, referring, or employing violations may be subject to a cease and desist order and to fines, as follows:


  1. For a first offense, not less than $375 and not more than $3,200 for each unauthorized immigrant with respect to whom the offense occurred;
  2. For a second offense, not less than $3,200 and not more than $6,500 for each unauthorized immigrant with respect to whom the offense occurred; and
  3. For more than two offenses, not less than $4,300 and not more than $16,000 for each unauthorized immigrant with respect to whom the third or subsequent offense occurred.


Section 274A also imposes criminal penalties. Employers convicted of having engaged in a pattern or practice of knowingly hiring or continuing to employ unauthorized immigrants may face criminal fines and/or imprisonment. They may be fined not more than $3,000 for each unauthorized immigrant with respect to whom the violation occurred and/or imprisoned for not more than six months for the entire pattern or practice.

The plan made sense. But section 274A has never been fully implemented. Consequently, employers have had little incentive to screen job applicants’ immigration status and reject those who are not authorized to work. The following table of final orders and administrative fines makes this very clear:



The highest number of fines was 642 in FY2014, the year when 8 million undocumented persons were working or looking for work in the United States. It is time to consider a different approach.

We propose focusing on a different magnet, the fact that it is so easy for American employers to exploit undocumented foreign workers. They are among the most vulnerable members of the workforce. That’s what draws unscrupulous employers to unauthorized workers. A 2007 paper by Georgetown University’s Institute for the Study of International Migration describes a category of employers that “knowingly hire[s] unauthorized workers to exploit their labor.” According to the paper, “such employers may pay salaries in cash, failing to pay their share of social security taxes; and they may seek unauthorized workers because they are less likely to complain about ill treatment.”

The Department of Labor (DOL) can address this problem purely as a labor issue. DOL has authority to enforce federal labor laws that were enacted to curb such abuses, such as the Fair Labor Standards Act which established a minimum wage, overtime pay, youth employment, and other standards. The Wage and Hour Division(WHD) of the DOL Employment Standards Administration administers and enforces these provisions. WHD’s compliance activities in low-wage industries may be particularly relevant to efforts to reduce unauthorized employment. These industries tend to employ significant numbers of undocumented immigrants. As the chart below indicates, this is a more aggressive program than the one for fining employers who hire undocumented immigrants. In FY2014, WHD collected $79.1 million in back wages for Fair Labor Standards Act overtime and minimum wage violations for 109,261 employees.



With additional funding, WHD could mount a large-scale, nationwide campaign to stop the exploitation of employees in industries known to hire large numbers of undocumented immigrants. This approach would have an immediate and chilling effect on not only the abuse of low wage workers but also herald a new era of enforcement of the laws already on the books against employers who are exploiting workers. On the immigration side, this focused attention on these abusive employers would result in fewer unauthorized workers being hired and dramatically reduce the power of the “job magnet”.

Published initially on Huffington Post.
http://www.huffingtonpost.com/entry/...=1479916421810

About authors.


Prakash Khatri has a national Immigration Law practice, Khatri Law Firm, LLC (www.khatrilaw.com) in MD. He is a nationally recognized expert on Immigration law, process and policy. From July 2003 until March 2008, Mr. Khatri served as the first Citizenship and Immigration Services Ombudsman at the Department of Homeland Security. Prior to that, he managed the Immigration Compliance Dept. for Walt Disney World in Florida from 1998 to 2003. In 1984, at the age of 22, he was the youngest attorney admitted to the Florida Bar.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for twenty years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

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Updated 11-24-2016 at 01:27 AM by ImmigrationLawBlogs

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Comments

  1. ImmigrationLawBlogs's Avatar

    Update, December 31, 2016:

    I know that this is definitely not the above authors' intention, but for those who do have such intention, some of whom may well turn out to be part of the upcoming Trump administration, if not even the new president himself, the measures outlined above would be an excellent way to Make America White Again.

    Roger Algase
    Attorney at Law




    Update: November 30,

    Coming right on the heels of Trump's delusional (I am trying to use the most polite and respectful word I can think of here) charge that "3 million" people voted "illegally" in this election in order to deprive him of a popular vote win, something which raises grave concerns about his commitment to the democratic electoral process,Trump's latest tweet, threatening to take away US citizenship for flag-burning, which the US Supreme Court has held to be a Constitutionally protected form of expression twice, in 1989 and 1990 (with Justice Scalia joining the majority!) is even more dangerous.

    Will Trump, as president, try to take away the US citizenship of anyone who disagrees with him about illegal immigration, legal immigration, or any other topic? Is this what America may have in store for the next four years, next eight years, or possibly even beyond that if Trumps tries to overturn the two-term limit, as he may be trying to overturn other parts of the Constitution?

    Roger Algase
    Attorney at Law

    My original comment follows:


    Targeting unscrupulous employers who exploit unauthorized workers is a worthy goal, but the Labor Department can easily turn into a attack dog against legal immigration by launching witch hunts against companies which employ foreign workers with valid visas but which may make minor or inadvertent mistakes in their various immigration or employment-related paperwork requirements.

    Trump sounded an ominous note a few days ago when he said he would order the DOL to investigate "visa abuses" which hurt American workers. This was a direct invitation - or demand - that the Labor Department should help in dismantling the current system of employment-based legal immigration system by and intimidating US workers who sponsor foreign workers for legal visa and green cards with endless Trumped-up "fraud" or paperwork violation charges and investigations, to the point where no one will want to sponsor a foreign worker for a legal visa.

    And why would Trump want to do this? is he motivated by a genuine concern for protecting the jobs and wage levels of American workers, something that the anti-union Republican party that he leads has never shown much interest in, or is Trump motivated something closer to the "traditional" "Judeo-Christian West" ueber alles ideology of his chief White House adviser pick, Stephen Bannon?

    What is Trump's real objective? Assuring a higher standard of living for millions of American workers, or making America white again by gutting the legal employment-based immigration system which now makes so many visas and green cards available to skilled and professional workers from Asia and other non-European, non-white areas of the world?

    Roger Algase
    Attorney at Law
    Updated 12-31-2016 at 07:52 AM by ImmigrationLawBlogs
  2. Herman DeWett's Avatar
    Quote Originally Posted by ImmigrationLawBlogs

    What is Trump's real objective? Assuring a higher standard of living for millions of American workers, or making America white again by gutting the legal employment-based immigration system which now makes so many visas and green cards available to skilled and professional workers from Asia and other non-European, non-white areas of the world?

    Roger Algase
    Attorney at Law
    These comments are extremely laughable coming from the mouth of a public interest lawyer who pretends to portray himself as some sort of a champion for non-Caucasian immigration to the US...remember, there is no such thing as the "white" race.

    It is well known that Donald Trump despises American workers for being unproductive, besides labelling these people as a race of slobs who always are begging for entitlements...coincidentally, the majority of these lazy individuals happen to be Caucasians!

    Moreover, If you carefully analyze Trump's statements about Mexican workers during his last visit to Mexico you will realize that he praises their loyalty (specially those involved in his business ventures).

    Bother yourself to visit one of Trump's hotels and you will realize the the workforce is very diversed (ethnically speaking) and predominantly immigrant.

    [Final paragraph of this post has been deleted. R.A.].
    Updated 11-23-2016 at 08:12 PM by ImmigrationLawBlogs
  3. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs

    And why would Trump want to do this?

    Roger Algase
    Attorney at Law
    Did you read the entire article, Roger? It explains why he would want to do it. I will summarize it for you.

    Immigration enforcement is one of his top priorities, and his advisors have convinced him to resume employer sanctions by working on e-verify. That will just waste a lot of time and money. Employer sanctions have been available for more than 30 years now, and they have never been used on more than a token basis.

    Prakash and I have proposed an alternative ENFORCEMENT MEASURE that would benefit exploited workers, both foreign and American. And it is cheaper and far more likely to produce enforcement results than employer sanctions.

    Nolan Rappaport




  4. Harry DeMell's Avatar
    The reason Comprehensive Immigration Reform a/k/a amnesty didn't work under Simpson-Mazzoli was that employer sanctions were never properly enforced. This was true under five presidents of both parties.

    No congressperson of either chamber or party wanted those sanctions enforced in their districts since the very
    people it was used against were often important contributors to their campaigns and were also significant employers in their districts.

    There is no indication that these sanctions would work of administered by another agency.

    Simpson-Mazzoli was an amnesty for two million people that encouraged another twelve million to come and wait for the next one.

    If you do what you've been doing you'll get what you've been getting. Six times twelve is ?
  5. ImmigrationLawBlogs's Avatar
    I would respectfully suggest that Mr. Rappaport might actually wish to read and respond to my entire final paragraph above, rather than picking only one single sentence out of context to comment on.

    Roger Algase
    Attorney at Law

    Updated 11-24-2016 at 10:45 AM by ImmigrationLawBlogs
  6. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by Harry DeMell
    The reason Comprehensive Immigration Reform a/k/a amnesty didn't work under Simpson-Mazzoli was that employer sanctions were never properly enforced. This was true under five presidents of both parties.

    No congressperson of either chamber or party wanted those sanctions enforced in their districts since the very
    people it was used against were often important contributors to their campaigns and were also significant employers in their districts.

    There is no indication that these sanctions would work of administered by another agency.

    Simpson-Mazzoli was an amnesty for two million people that encouraged another twelve million to come and wait for the next one.

    If you do what you've been doing you'll get what you've been getting. Six times twelve is ?
    Thanks, Harry. Trump will waste a lot of money and experience a huge failure if he tries to implement the employer sanctions program. Prakash and I have offered an alternative that has a much better chance of working.
  7. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs


    What is Trump's real objective? Assuring a higher standard of living for millions of American workers, or making America white again by gutting the legal employment-based immigration system which now makes so many visas and green cards available to skilled and professional workers from Asia and other non-European, non-white areas of the world?

    Roger Algase
    Attorney at Law
    I didn't forget to respond to this paragraph. I deliberately ignored it. I am not going to debate any more of your unsubstantiated Trump accusations.
  8. ImmigrationLawBlogs's Avatar
    Beyond the question of whether the current race/religion-neutral immigration system that America has had, at least in principle, since 1965 can survive Trump's very possible 1-2-3 punch of Jeff Sessions as AG, Kris Kobach as DHS Secretary and Rudy Giuliani as Secretary of State, all of whom have well deserved reputations for sympathy or actual ties to white supremacist groups or policies; not to mention Trump's own (indirect, but still clear enough) attack on the 1965 immigration law which abolished 80 years of white supremacist immigrant laws (in Trump's August 31 immigration address - which Mr. Rappaport must have certainly read but perhaps not fully understood), as well as Trump's repeated attacks on Latino and Middle Eastern immigrants as "criminals" and "rapists", or "terrorists"; there is the larger question whether America's democracy itself will survive the Donald Trump presidency.

    On this point, I recommend reading a Salon.com November 27 article:

    The slow motion decline: Resisting the gradual erosion of democratic institutions under president Donald Trump

    http://www.salon.com/2016/11/27/the-...resident-trump

    My only quibble with this article is that, based on many of Trump's statements and some of his post-election appointments (such as not only Sessions, but also self-styled "nationalist" Stephen Bannon and avowed Muslim-hater Michael Flynn), the erosion of America's democracy might not be as slow as the Slate article appears to contemplate.

    Unless the Democrats unite in opposition to any attempt by Trump to undermine our race/religion neutral immigration system, and the democracy of which that system is an integral part; and unless enough responsible Republican legislators also join them in support of America's fundamental values of democracy and racial equality, our country could turn into a one-man white supremacist dictatorship "so fast it could make your head spin".

    Roger Algase
    Attorney at Law
    Updated 12-31-2016 at 06:27 AM by ImmigrationLawBlogs
  9. ImmigrationLawBlogs's Avatar
    Our democracy may be disappearing even faster than even Trump's strongest critics might have thought. Trump has now shown that he cares nothing at all about our voting process or free elections by making up the claim that he really won the popular vote because 3 million people voted "illegally".

    He offered no evidence for this absurd, ridiculous claim. What will happen if Trump runs for reelection in 2020, loses and then refuses to hand over power? Or suppose he simply cancels the election through fiat?

    Is potentially the most dangerous, delusional president in all of US history less than two months away from taking power?

    http://www.thehill.com/homenews/camp...oted-illegally

    Roger Algase
    Attorney at Law
    Updated 12-01-2016 at 01:29 PM by ImmigrationLawBlogs
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