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Immigration Enforcement Targets Employers

The Obama Administration plans to intensify efforts begun under the Bush Administration to crack down on companies that knowingly hire illegal immigrants, according to Janet Napolitano, the new head of the of Homeland Security Dept.

Speaking to reporters at a breakfast sponsored on May 19 by The Christian Science Monitor, Napolitano said that DHS, which encompasses the U.S. Immigration & Customs Enforcement service, or ICE, and the U.S. Citizen and Immigration Services, or CIS, will focus more on targeting employers than workers as it tackles illegal immigration.

The "Pull" Factor

"Before we go in and arrest a bunch of workers, we need to make sure we've done what we need to do to prepare a case against the employer if there's a basis to believe that an employer is knowingly hiring illegal immigrants," Napolitano said. "We recognize that the bulk of illegal immigration is because of labor demand. You've got to get at that 'pull' factor if you're going to have an impact."

To do so, Napolitano said the DHS will bolster its ability to determine what employers actually know about their employees' status. For example, DHS will step up its audits of the Employee Eligibility Verification forms, commonly known as I9 forms, that employers must use to verify their employees' identification and confirm that they have the right to work in the U.S.

"There are a whole host of investigative techniques you can use" if you want to get at the people making money off of the hiring of illegal immigrants, rather than simply rack up bigger arrest numbers of the workers themselves, she said.

E-Verify: Fixes and Glitches

Wider use of the controversial E-Verify program also appears to be in the works. The federal program—administered by CIS—is designed to allow employers to check that employees and new hires are providing accurate Social Security numbers and other documents. The program has been widely criticized by the business community and immigrants' rights groups, however, because it contains many errors. According to a 2006 DHS study, it had a nearly 11% error rate, although that had been reduced to 6% by mid-2008. President Obama's 2010 budget includes $112 million, a 12% increase from the previous year, to improve the accuracy of E-Verify and encourage more employers to use it.

Some immigrant advocates say that while forms of employee screening may be necessary, the current E-Verify system is not yet reliable enough to be that tool. "When we fix our immigration system, part of that fix is most likely going to be E-Verify," says Doug Rivlin, a spokesman for the National Immigration Forum, which supports immigrants' rights. "But E-Verify has a long way to go before it's ready for prime time."

Businesses fear that errors could force them to fire employees or avoid new hires who appear to be illegal but who are in fact working legally in the U.S. They also argue it is often ineffective and can encourage identity theft, since employees who simply make up a Social Security number have a greater chance of being caught by E-Verify than those who use the stolen Social Security number, name, and other identifying details of a real person. "Everyone arrested in the Swift plant raids had been through the E-Verify system," says Angelo Amador, the head of immigration policy for the U.S. Chamber of Commerce, referring to the hundreds of workers arrested in late 2006 after ICE agents raided six plants owned by meatpacker Swift & Co..

The Chamber, along with several other business groups, has filed suit to halt efforts begun by the Bush Administration in mid-2008 to mandate that virtually all companies contracting with the federal government use E-Verify; not only would contractors have to use it for new hires, they would have to screen their existing workforces as well. The regulation would also impose liability on the companies if any of their subcontractors knowingly used illegal workers. There has been some question as to whether the Obama Administration would continue with those plans. Officials recently asked for a second 60-day extension, to June 30, to delay the implementation of the law while they study the impact. Amador says he welcomes the fact that members of the new Administration say they will address the database issues, "but no one believes the problems have been solved."

Arizona Experience

At the press briefing in Washington, Napolitano signaled that the DHS is likely to push ahead with broad implementation of E-Verify. In doing so, she made a nod to her experience as the governor of Arizona, where the controversy over E-Verify has been most intense. As governor, Napolitano signed into law a harsh measure aimed at cracking down on businesses that hired employees who didn't have the right to work in the U.S. Any business found to have twice knowingly hired illegal immigrants risked losing their license to do business in the state.

That Arizona law led to a huge outcry in the business community. Small and medium-size businesses in particular worried that they could be shut down if they inadvertently hired employees who had forged their Social Security cards or other documents; some even said they would refuse to invest further in Arizona if the law wasn't clarified to remove that risk.

Napolitano, who signed the Arizona bill to head off even more punitive measures brewing in the state legislature, concedes that it led to "a lot of hulabaloo" among Arizona businesses, though she points out that there has not yet been a case brought against a business under the law. More important, Napolitano argues, the law has been effective in getting businesses to sign-up with E-Verify.

"One-quarter of the U.S. businesses using E-Verify today are from Arizona," she says. "Since we want to encourage business to use E-Verify to establish lawful residency for the purposes of work, these kinds of things make sense." Napolitano added that simply having the law on the books made employers realize that the state was serious about enforcing immigration laws.

Broader Policy Initiatives

But Napolitano also made it clear that cracking down on illegal workers isn't her only priority when it comes to immigration policy. She has also instructed her staff to look more broadly at the administrative processes surrounding immigration. Among her goals, she said, is streamlining the procedures legal immigrants must go through to gain entry to or remain in the country. That means looking at such things as whether the existing visa programs are the right programs, whether the right numbers of the existing visa types are being granted, and whether there is enough flexibility built into the programs.

"There are a whole host of things that need to be looked at when you're looking at immigration law," she said. "If you look at our history, we will have immigration." The only real question is the legal structure under which that immigration will take place.

As for that other key question regarding Napolitano that is the subject of much speculation around Washington these days? Asked what it felt like to be on the short list for the Supreme Court, Napolitano was uncharacteristically silent. "My, these are really good eggs," she answered. "That's all I'll say."

Editor's Note: This story originally said that the E-Verify system is run by the U.S. Immigration & Customs Enforcement service. In fact, it is administered by U.S. Citizen and Immigration Services.

Sasseen is Washington bureau chief for BusinessWeek. With Moira Herbst in New York

Sasseen is Washington bureau chief for BusinessWeek.

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