Immigration enforcement versus employment law enforcement: the case for integrated protections in the immigrant workplace.

• Author: Saucedo, Leticia M.

ABSTRACT

In considering specific provisions of the Immigration and Nationality Act that can be "fixed" in the absence of comprehensive immigration reform, we must seek to ameliorate the unintended consequences of existing provisions. One important and potentially devastating consequence has been the exploitation of noncitizen workers arising out of the implementation of the employer sanctions provisions of the Act. The employer sanctions provisions were implemented to punish employers who knowingly hired undocumented workers. Since its enactment, however, it has been workers themselves who have borne the consequences of employer sanctions enforcement efforts. Employer sanctions investigations have yielded vastly more deportation orders than employer violations. Today, moreover, prosecutors charge workers with fraud and similar criminal violations, even though Congress did not intend criminal sanctions for workers who worked in the United States without authorization. These actions are taken in the name of immigration enforcement, which I believe is overemphasized. A more nuanced reading of the Act reveals a congressional intent to admit and protect several categories of noncitizens, including victims of workplace criminal activity. Specifically, the Act contains a potentially powerful provision that can undo many of the unintended consequences of employer sanctions provisions, and at the same time refocus enforcement efforts on the originally-intended employers who knowingly hire undocumented workers. The U visa provision of the INA--intended to protect victims of crimes, including workplace crimes--can and should provide leverage to workers who seek to uphold or enforce labor and employment rights in the most egregious settings (i.e., those in which the employer is both circumventing the immigration employer sanctions provisions and exploiting noncitizen workers who fear deportation). In this essay, I recommend ways to strengthen the U visa provision so that it can mitigate the unintended consequences of employer sanctions provisions for workers.

TABLE OF CONTENTS Abstract Introduction I. Historical Background: Employer Sanctions, Unintended Consequences, and the Employment Structure in Immigrant Workplaces II. The Role of the U Visa Provisions A. The U Visa as a Tool for Law Enforcement B. The U Visa as Humanitarian Relief for Those who are Helpful to Law Enforcement C. The U Visa Protects Workers who Suffer Crimes in the Workplace III. The Fixes: Strengthening the U Visa Provisions A. Ensuring That Victims are not Punished 1. Create a Parallel to T Nonimmigrant Status Protection Prohibiting Criminal Charges Against Victims for Crimes Related to Trafficking 2. Amend Social Security Act to Exclude False Use of Social Security Numbers for Work From Criminal Sanctions 3. Increase the Number of U Visas Available Every Year 4. Make Explicit That Work-Related Crimes are Included in the U Visa Scheme 5. Expand Workplace Related Crimes to Include Wage and Hour Violations, Discrimination, and Collective Bargaining Violations 6. Define Certain Workplace-Related Crimes (e.g., Coercive or Extortionist Practices in the Workplace) as Per Se Evidence of Mental and Physical Abuse in the Regulations and/or Rework the Definition of "Victim" in the Provision B. The Limited Effect of U Visa Fixes to the INA 1. These Fixes Continue in the Tradition of Piecemeal Reform of the Immigration System 2. These Fixes Continue to Perpetuate the Victim-Based Humanitarian Model of Immigration Relief 3. These Fixes Continue to Ignore the Collective Nature of Workplace Exploitation by Focusing Immigration Relief on Individuals Conclusion INTRODUCTION

In many ways, immigration regulation today emphasizes enforcement over other aspects of the immigration scheme, such as admissions. The enforcement goals of immigration law tend to compete with enforcement goals in other areas of law, such as employment law, producing mixed results. (1) The Immigration and Nationality Act's ("INA" or "Act") employer sanctions provision can be seen as an example of Congress reaching into the employment arena to fulfill the enforcement aspect of immigration regulation. The enforcement principles of immigration law, however, are overemphasized. A more nuanced reading of the statute would reveal a congressional intent to admit and protect several categories of noncitizens. Among the protected categories are noncitizens who have been the victims of, among other things, workplace criminal activity. Specifically, the Act contains a potentially powerful provision that can undo many of the unintended consequences of employer sanctions provisions, and at the same time refocus enforcement efforts on the originally-intended employers who knowingly hire undocumented workers. The U visa provision of the INA--intended to protect victims of crimes, including workplace crimes--can and should provide leverage to workers who seek to uphold or enforce labor and employment rights in the most egregious settings (i.e., those in which the employer is both circumventing the immigration employer sanctions provisions and also exploiting noncitizen workers who fear deportation). (2) In this essay, I will focus on the issues that have arisen in the implementation of the U visa program and its application to workplace crimes. I will also provide some recommendations for future implementation of workplace protections for noncitizens in the immigration statute. In addition to providing suggestions for strengthening the protection mechanisms of U nonimmigrant status in the Act, I critique my own approach, in as much as it follows in the tradition of piecemeal legislation to "fix" the problem of immigration in this country. Ultimately, I believe Congress should examine the consequences of its entry into the immigration-employment nexus and continue to build upon protections that alleviate the unintended exploitation caused by its implementation of employer sanctions.

1. HISTORICAL BACKGROUND: EMPLOYER SANCTIONS, UNINTENDED CONSEQUENCES, AND THE EMPLOYMENT STRUCTURE IN IMMIGRANT WORKPLACES

   Before the passage of the Immigration Control and Reform Act of 1986 (IRCA), it was not a violation of the Immigration and Nationality Act to work in the United States without authorization or to hire undocumented workers. (3) With the passage of the IRCA, Congress determined that employers would become both targets and allies in border control and enforcement activities. Congress introduced sanctions for employers who knowingly hire undocumented workers. (4) Employers face fines and possible imprisonment for violating the employer sanctions provisions of the Act. (5) The provision was meant to prevent and deter employers from seeking, recruiting or pulling undocumented immigrant workers into the U.S. labor market. The Act also imposes civil penalties in the form of immigration- related sanctions for those who work without authorization. For example, INA [section] 245 prohibits adjustment of status to anyone (except immediate relatives of a citizen) who has worked in the United States without authorization. (6) Notably, however, Congress has refused to impose criminal sanctions against workers for unauthorized work.

   In the employment arena, most notably after the Act's amendment in 1986, the workplace became a site and focus of immigration regulation and enforcement. When Congress included the employer sanctions provisions into the Immigration Reform and Control Act of 1986, (7) it bound the fates of employers and workers who entered employment arrangements in violation of Congressional intent to curb unlawful immigration. The provisions were meant to discourage the entry of undocumented workers by sanctioning employers and thereby cutting off the demand for such labor. (8) In fact, as predicted by several immigrant advocacy organizations, including the Mexican American Legal Defense and Educational Fund (MALDEF), which warned of the consequences of employer sanctions provisions, the amendments did not curb immigration. (9) Instead, the provisions resulted in more workplace exploitation, as employers took advantage of workers' undocumented status, and at the same time, employers began to build protections from regulatory enforcement. (10) The unintended consequence of the employer sanctions provision was the development of a more vulnerable, still undocumented, labor force. (11)

   Today, worksite enforcement, ostensibly targeting employers who knowingly hire undocumented workers, has become a regular part of immigration enforcement activity of Immigration and Customs Enforcement (ICE), the agency responsible for immigration enforcement efforts. (12) ICE's enforcement strategy has yielded woefully low numbers of employer sanctions, penalties, or prosecutions. Since the enactment of the provision, only relatively few employers have faced prosecution for knowingly hiring undocumented workers. In 2009, for example, ICE arrested over 1100 individuals in worksite enforcement efforts. (13) Only 135 of those were employers or their agents. (14) ICE also made over 5,100 administrative arrests or detentions during those enforcement efforts. (15) In April 2009, the Department of Homeland Security issued a policy memorandum and fact sheet addressing the Obama administration's approach to worksite enforcement. (16) The policy notes that ICE's focus in worksite enforcement is on employer rather than employee violations. (17) At the same time, the strategy provides employers safe harbors from prosecution. (18)

   ICE acknowledges it will continue to enforce removals of workers caught up in their investigations of employer violations. (19) Even though the current administration portrays deportations as incidental consequences of its focus on employers, thousands of workers have been affected. The same is not true of employers. While the government claims it has targeted exploitative employers, few, if any, of the...