Despite Wal-Mart case, raids for illegal workers are rare

By Justin Pritchard
Associated Press

When federal agents swept into Wal-Marts nationwide and arrested 245 floor cleaners, they were reviving an old, but now rare practice.

Politics and economics weaned the federal government from workplace crackdowns of illegal employees years ago. The government has busted steadily fewer employers and arrested fewer illegal employees since the late 1990s, according to federal immigration data.

Immigration officials often attribute the marked decline in workplace enforcement to a new focus on national security, saying that agents who once raided restaurant kitchens and construction sites have been reassigned to airports and nuclear plants.

But in fact the decline began four years before 9/11, as the frenetic economy drew foreign nationals into bottom-rung jobs Americans wouldn't take, and as federal immigration policy-makers focused on deporting criminals and fortifying the U.S.-Mexico border.

On some occasions when agents did swoop in, lawmakers howled to protect important business constituencies.

An estimated 3 million new workers entered the United States during the economic boom, many of them legally. But many of the most backbreaking jobs went to those who crossed the border without papers. And while the law says undocumented immigrants cannot work, a flourishing gray market says welcome.

An Associated Press analysis of federal immigration data tracks the drop in workplace enforcement:

• The average number of completed employer investigations fell from 6,100 a year during the 1990s to 1,900 a year over the past three years — a 69 percent decline. The average number of employers fined for having undocumented workers fell from 1,025 to 110.
• While more than 200,000 businesses are believed to employ undocumented workers, according to the General Accounting Office, only 53 employers were fined in fiscal 2002.
• An average of 200 workers were arrested each week during the 1990s, peaking with 340 workers in fiscal 1997. Since fiscal 2000, arrests have averaged 12 a week.
• As recently as 1998, the equivalent of 344 full-time agents worked on employer investigations. By fiscal 2001 that number had fallen to 124, according to the GAO. While there's no separate line item in the immigration budget for workplace enforcement, officials say they had fewer agents because financing declined over the years.

Some immigration officials in Washington warn against concluding that workplace raids have been all but abandoned, particularly since the Immigration and Naturalization Service was absorbed into the Department of Homeland Security this spring.

The Wal-Mart raids, which took place Oct. 23 and netted mostly employees of cleaning subcontractors, are a prominent example. Garrison Courtney, a spokesman for U.S. Bureau of Immigration and Customs Enforcement, also notes that agents hit 15 convenience stores last month in Northern California, arresting 31 foreign-born workers.

But raids on mom-and-pop shops are now less common, in part because investigators use subtler techniques such as cross-referencing employer records with federal databases to reveal concentrations of illegal workers, Courtney said.

Immigration data do show that in recent years a greater portion of criminal cases are completed, and closed cases are increasingly likely to end with successful prosecutions.

Still, the fraction of businesses hiring undocumented workers that pay any penalty is minute.

Workplace raids are not an active concern for the U.S. Chamber of Commerce and national associations representing restaurants, small businesses and meat packers.

"It's a wink and a nod. We recognize that the workforce is needed and so we simply don't enforce at the workplace," said Rep. Jeff Flake, R-Ariz. "The reality is, there are somewhere between 8 (million) and 12 million undocumented workers, and if you did serious workplace enforcement that would cause serious displacement."

By law, employers must verify workers' legal status by checking identification such as Social Security cards and driver's licenses — documents that are easily forged. Forgeries may be easily overlooked, and companies that rely on subcontractors for employees argue that they're not responsible.

Proving an employer knew a worker was illegal is hard, and even if they are found guilty, there's little economic incentive for bosses to scrutinize documents. A one-in-a-thousand bust by immigration agents might result in fines of up to $10,000 per worker, but firms can save more than that by paying an undocumented workforce $7 an hour instead of, say, the $11 plus benefits other employees might demand.

The decline in workplace enforcement reflects this reality: raids are not only unpopular, they also disrupt businesses far more than the supply of undocumented labor.

"They have not had any enduring effect on the labor force," said Wayne Cornelius, a University of California-San Diego immigration expert.

Joe Greene, the federal agent now in charge of work-site enforcement, said he grew tired of reading that a week after a raid, the same undocumented workers had returned — or others had taken their places.

"The question we were asking ourselves internally was, 'What impact are we having on the problem?' " asked Greene, ICE's deputy assistant director for investigations.

The new priority has been to focus federal efforts on worker smuggling, sweatshop exploitation and instances in which undocumented workers displace U.S. workers.

Doris Meissner, the top federal immigration official under President Clinton, likened the policy shift under her watch to how the FBI moved from bank robberies and auto theft to white-collar and other organized crime.

"You knew you would have fewer cases, but you would have much more impact in ripple effects," said Meissner, now a senior fellow at the Migration Policy Institute.

The Wal-Mart case capped a five-year investigation and fits that set-an-example approach.

The government is asking a federal grand jury to find that Wal-Mart knew the crews of mainly Eastern European workers had invalid work papers. Corporate officials say they had no idea the workers were illegal and that document checking was the subcontractor's job.

That argument helped Tyson Foods beat federal charges that the poultry giant conspired to recruit undocumented Hispanics to work at chicken processing plants in nine states.

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