Undocumented Workers Provide Employers With Little Risk, Large Reward

PER_Immigration_01_112055099_BANNER
Migrant workers often live in property owned or run by their employers. This entangles bosses in the lives of undocumented employees in ways that complicate plausible deniability. Benjamin Lowy/Getty

The campaign against undocumented laborers escalated to its most severe crackdown in over a decade when federal agents with Immigration and Customs Enforcement (ICE) raided five poultry processing facilities in Mississippi last week, sweeping up 680 people on suspicion of unlawful status.

The outcry was immediate, and though about 300 were ultimately released from detention for humanitarian reasons pending further hearings, the operation served as a reminder of how integral the undocumented workforce is to the U.S. labor market and the importance of these workers to the communities in which they live, often in the shadows.

Scenes of children crying, begging for the return of their parents while immigration officials insisted they were just doing their job, presented a jarring portrait to some Americans.

In the wake of last week's raids and a public re-examination of the fairness of immigration enforcement, a number of immigration lawyers, stakeholders and a former top official spoke to Newsweek about the realities of undocumented labor in America: one foot in the legitimacy of paid work, the other foot trapped in the fear of law enforcement action.

PER_Immigration_02
ICE raids multiple Mississippi plants on August 7, leading to officers detaining 680 undocumented workers, in the biggest raid in a decade. A.Mason/ICE Public Affairs

Moreover, the companies that profit from undocumented labor are drawing renewed scrutiny for their role in the dysfunctional immigration system.

Targets on their back: the undocumented bear the brunt of immigration enforcement

Data from Syracuse University's Transactional Records Access Clearinghouse (TRAC) database shows that when the federal government pursues violations related to undocumented labor, it's workers, and not the companies, who bear the brunt of the enforcement action.

According to TRAC's analysis of Justice Department data, prosecutions under a specific federal statute criminalizing the employment, knowingly, of undocumented workers are exceedingly rare. Only 11 people in total were prosecuted in connection with employing undocumented workers in the 12 months starting in April 2018. These prosecutions were contained within just seven cases. No corporate entities were themselves targeted by government prosecutors.

"From an employer's side, verifying eligibility is a very difficult process to manage," Allen Orr, an attorney who represents companies in immigration matters, explained to Newsweek. "They're not in the business of validating who is in the United States lawfully. At the same time, there's the government saying, 'Don't do this stuff.' If you're a small business, it becomes problematic to onboard somebody who wants to work at your company."

To be sure, the difference in enforcement actions taken against companies versus individuals is more complicated than just government priorities. An immigrant's lawful status is a sole factor that can be used against them in immigration proceedings.

For companies, on the other hand, employing an undocumented worker is not enough to generate criminal liability. Among other criteria, the hiring of undocumented employees has to be done knowingly, which is complicated by the fact that many undocumented workers present fraudulent documents to human resources so their applications appear legitimate.

Additionally, prosecutions of employers could occur under statutes criminalizing other conduct related to hiring practices, such as falsifying documents and committing workplace abuses, that wouldn't be covered by TRAC's analysis.

Government investigators in ICE's Homeland Security Investigations (HSI) unit are responsible for conducting inquiries into potential violations of immigration employment law. While the process of investigation for workers can be swift—often involving sweeps, lineups and mass detentions—the process for employers is a bit more protracted.

"On a day to day basis, what generally happens is that these employers are issued notices of inspection," Orr said. "It's a paper chase; it's not a raid. It's a long administrative process. The employer gets back a notice of suspect documents, and then the employer deals with employees on site by dismissing them. If there's constructive knowledge found by the company, then they are fined heavily."

Fines are the government's preferred method of action for handling violations of immigration labor law. From 2009 to 2014, the number of fines issued by ICE in civil cases has grown by over 1,200 percent, according to a report from the Congressional Research Service.

In 2009, just 52 cases investigated by ICE resulted in civil fines. Five years later, that number swelled to 642 and yielded over $16.2 million in penalties.

Orr said that "you usually see large fines" in cases of significant violations by employers of immigration law.

"But very rarely do you see people go to jail," he added.

For Jay Gervasi, a workers' compensation attorney in North Carolina, many of these cases are merely the result of an employer looking the other way when hiring an undocumented worker.

"In the vast majority of cases I've handled in which an undocumented worker is injured, the employers are fully aware that everyone there was undocumented," he told Newsweek. "They are happy to use the undocumented workers, and sometimes they're cynical enough to use their undocumented status to thwart their workers' compensation claims. It does hang over people."

Colorado Farm Suffers As Immigrant Workforce Diminishes
A Mexican immigrant worker harvests organic parsley at Grant Family Farms on October 11, 2011 in Wellington, Colorado. John Moore/Getty

Although other challenges can further complicate the prosecution of employers who knowingly commit violations. In many cases, the company employee who is aware of a worker's undocumented status is a lower-level human resources representative. In instances like these, broader attempts to prosecute company executives or the corporate entity itself are seldom justified.

But regardless of the difficulties in sustaining criminal convictions for companies, the data shows a clear focus within the Justice Department on prosecuting immigrants.

While 11 individuals employing undocumented workers were prosecuted over a recent 12-month period, 85,727 immigrants were prosecuted criminally during that same period for crossing the border illegally, according to the TRAC report.

During worksite enforcement operations in 2014, ICE subjected 541 undocumented employees to arrest for lack of lawful presence, setting off the process of eventual deportation for many. Two years prior, that number was over 1,000. The year of Barack Obama's election, over 5,000 undocumented workers were arrested for this reason as a result of ICE's worksite operations.

"The way justice is administered is the same way it's administered in every other area of law," Orr analogized. "The lower-level person, the drug dealer, for example, he goes to jail. The distributor doesn't go to jail. He gets fined."

Undocumented workers form the backbone of the U.S. agricultural sector

The disparities in criminal prosecution are only one piece of the puzzle when it comes to the sprawling and often contradictory immigration system the U.S. has cobbled together over a half-century.

The Pew Research Center estimates that 10.5 million undocumented immigrants were living in America in 2017. As that number has surged in recent decades, culminating in historic levels in the early aughts, federal lawmakers have failed to comprehensively overhaul the immigration system in a way that accounts for the millions living here without paperwork who form the backbone of many American communities.

Nearly all of the experts who spoke with Newsweek, regardless of inclination towards immigration, described the current system as fundamentally flawed, if not completely broken.

A former top HSI official, who spoke with Newsweek on the condition of anonymity in order to be candid about his experience as an immigration official, said that immigration enforcement in employment has been lumbering forward for years, enabled by the lack of reform at the federal level.

"It works today the same way that it did under the Bush and Obama administrations," the individual, who was an immigration official in these administrations, said in a conversation. "It doesn't matter how great your case is. We presented cases to the Department of Justice, and it's up to them to take up prosecution. HSI can do the greatest criminal investigation there is, but if it's not meeting the Department of Justice's prosecutorial priorities, then it's going to sit on the back burner."

While the system has failed to change around them, employers have felt an acute demand for workers in sectors that involve manual labor, especially in the agricultural industry.

Migrant Workers Farm Crops In Southern CA
A Mexican agricultural worker cultivates lettuce on a farm on October 8, 2013 in Holtville, California. John Moore/Getty

The food and agriculture business contributed over $1 trillion to the U.S. gross domestic product (GDP) in 2017 when accounting for related industries, according to the USDA. Output from American farms alone makes up 1 percent of GDP. (In 2008, agriculture and related industries contributed less than $800 million to the country's GDP.)

The centrality of food and agriculture to the economy is also reflected in employment numbers. Just under 22 million full-time and part-time jobs were involved in the agriculture business in 2017, forming 11 percent of total employment in the United States.

Net farm incomes have stagnated in recent years, and are markedly down from a record high of $123.8 billion in 2013. By comparison, in 2013 dollars, net farm incomes this year are projected to reach just $63 billion.

The importance of the sector and the declining profitability of farms in recent years have accentuated the country's immigration crisis.

"The law of supply and demand generally outweighs the statutory law, and what we're seeing here is that policymakers and Congress are all perfectly ok with having this black-market system of undocumented labor to keep American business thriving," Jeremy McKinney, an immigration lawyer in North Carolina, told Newsweek. "We need this labor. If you run off the undocumented workers, then you suffer crippling financial losses, like what they saw in Alabama. After they tried to get tough on employers in Alabama, the next thing you know there was no one to harvest the crops."

According to a report prepared for the Department of Labor in January 2018, 49 percent of all U.S. crop farmworkers in 2015 and 2016 were immigrants who lacked work authorization; and among all U.S. crop farmworkers, 69 percent were born in Mexico.

Employment of Mexico-born individuals, who in many cases leave their families and support networks behind, and unauthorized workers in general often requires employers to provide basic social services, further entangling them in the lives of the undocumented in ways that complicate plausible deniability.

Fifteen percent of farmworkers reported living on property owned or administered by their employer, the Department of Labor survey found. Migrant farmworkers specifically were nearly three times as likely as settled workers to live in employer-provided housing for free.

"Employers will house them, provide transportation and really facilitate the undocumented workforce's ability to work," the former HSI official said. "They're underpaid, overworked and in many cases deductions are being made from their paychecks so they're left with little disposable income."

Special Agents
US Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) special agents arrested alleged immigration violators at Fresh Mark, Salem, June 19, 2018. Smith Collection/Gado/Getty

But the investment is hardly an act of charity to the undocumented. When asked whether or not undocumented work was part of the business model of agriculture, the official replied: "absolutely."

A broken system, and broken promises

McKinney highlighted the perceived unfairness of a system many described as broken that always seems to entrap employees, but rarely those complicit in their employment.

"All the stakeholders in this system understand that the American immigration system is broken, and they understand that the enforcement side is broken when it comes to workers and employers," McKinney said. "But a lot of times they don't enforce the law against employers, because the view is that, 'Oh, the system doesn't work, the process is too long and the fines are too small.' They come to that conclusion when it comes to employers, and yet they're completely willing to take a broken immigration system and apply it with abandon against workers. I don't understand that."

The former HSI official echoed this sentiment, opining that "many of the folks at HSI would say what we've got is not a sufficient deterrent, and I don't think that the current administration thinks so either."

While the government sorts out how to resolve the dueling pressures of the economy and immigration law, undocumented farmworkers who provide an essential service to American consumers are living on edge.

Many immigrants whose family members were swept up in the Mississippi raids are still looking for their loved ones, according to Amelia McGowan, a senior attorney at the Mississippi Center for Justice who helped coordinate legal representation for impacted families.

The raids resurfaced old fears about ICE worksite actions that were triggered most significantly in 2006, when the agency conducted a worksite raid of six Swift & Company meatpacking plants in the Midwest, the largest single worksite immigration operation in U.S. history. The Swift raids live in the cultural memory of immigration stakeholders, and they came up multiple times in discussions with attorneys about the sustainability of the current system.

"There's definitely a concern that more raids will occur soon," McGowan said. "People have expressed that they're sort of living in apprehension all the time. Part of it is just the unknown. That's the biggest thing, the unknown."

Immigrant Advocates Hand Out Informational Fliers Ahead Of Impending ICE Raids
Immigration advocates with the Florida Immigrant Coalition go house to house handing out fliers on July 13, 2019, in Little Havana in Miami, Florida. The Trump administration had planned for mass raids to occur that weekend, though the raids did not ultimately take place on the vast scale that was anticipated. Saul Martinez/Getty

Accordingly, suspicion and paranoia quickly spread within the immigrant community about further enforcement action, destabilizing an already fraught situation. McGowan said that people are "hearing rumors about ICE vehicles" patrolling the area, and now residents "are just on high alert."

Even the immigrants at the receiving end of immigration enforcement have an acute awareness of the one-sidedness of the government's immigration priorities. McGowan said that "a common refrain when meeting with people" was how immigrants were the apparent focus of crackdowns, not employers.

"A lot of people were saying, 'We've provided support for this company for years, and this is what happens?" she relayed. "They knew very well that they were the ones who were getting caught up and not the employers."

In some circumstances, victims of employer misconduct can cooperate with ICE to provide testimony against their employer in exchange for some consideration of lawful status. But the administration is not viewed as acting in good faith when bargaining with undocumented immigrants for their testimony. In fact, ICE recently revised guidance "to make it easier to deport individuals" in other immigration matters who decide to cooperate, McKinney said.

"These individuals stepped forward to cooperate with the authorities to report a crime, and they're supposed to get protection under the law, and they're not. Why is that?" he asked. "It's because the administration changed. When it comes to employment, we're trying to provide HSI with witnesses, but I've only been able to get one person to come forward. Because they're afraid that they're going to be coming out of the shadows and putting themselves out there, only to be arrested."

Without testimony from workers who can describe the potential complicity of their employers, the barriers to prosecution remain.

In response to a request for comment, ICE claimed that it does give priority to employer-perpetrated crimes, and provided the recent example of James Brantley, a business owner who was sentenced to 18 months in federal prison in connection with an HSI worksite investigation.

An ICE spokesperson also pointed to the greater number of prosecutions of employers under adjacent statutes, beyond the more narrow analysis published by TRAC. In fiscal year 2018, 72 managers were prosecuted in connection with worksite-related crimes. Though this number remained relatively unchanged from 2017, even though ICE arrested over five times as many people year-over-year. One complicating factor, as ICE noted, is the possible lag time between investigation, arrest and prosecution.

This article has been updated to include comments from an ICE spokesperson.

Undocumented Workers Provide Employers With Little Risk, Large Reward