Recent news stories show a pattern of U.S. employers illegally hiring foreign workers who may or may not be under the impression that their legal papers are being procured.  The employers can increase their ill-gotten gains by charging for immigration processes that are never performed, and by illegally keeping a part of the foreign laborers’ pay.  The recent ICE raid fell into this pattern, resulting in numerous deportations as well as potential criminal liability for employers accused of “knowingly hiring” persons not authorized to work.  This multi-state enforcement action was preceded by a 15-month investigative operation by Homeland Security Investigations.  The initial suspicions in this operation stemmed from discrepancies in the companies’ I-9 employment verification forms that indicated the presence of unlawful workers.  Government I-9 audits are at an all-time high under ICE’s new 2-phase nationwide audit operation, which has already delivered over 5,200 audit notices.

Another example happened in Oklahoma, where a local farm-labor contractor was exploiting migrant workers and local farmers in violation of H-2A regulations.  The accused, Philippus Binneman, faces 10 felony charges because of his illegal operation.  Binneman would lure migrant workers from their legal jobs with the promise of better pay, which was a lie, and a proper amendment of their legal status, for which he never actually petitioned.  He would then contract these workers to unknowing farmers, who would pay extra money for the immigration processes that never occurred.  Binneman thus profited in two illegal ways.  His operation came under government scrutiny because some of his exploited workers expressed concern to the farmers, who in turn reported the suspicious activity.

These two examples share some commonalities.  They both involve U.S. persons who were incentivized and emboldened to exploit foreign laborers. The source of their incentive is clear.  The U.S. is a job magnet thanks to the great economic disparity compared to other developing countries.  But the emboldened nature of the U.S. employers is the real puzzler, especially in this pro-enforcement environment.  The reason is likely that the government’s perceived harshness, though meant to scare U.S. employers into strict compliance, has had the paradoxical reaction:  instead, vulnerable foreign laborers are too scared to protect themselves from exploitation.

“The reason is likely that the government’s perceived harshness, though meant to scare U.S. employers into strict compliance, has had the paradoxical reaction:  instead, vulnerable foreign laborers are too scared to protect themselves from exploitation.”

Neither of the stories involved an exploited worker contacting ICE through the Tip Form on their website.  The first was prompted by discrepancies in a government I-9 audit, and the second involved a tip from a defrauded farmer.  The current administration proudly touts its increased enforcement and enhanced punishments for immigration violations, which naturally makes immigrants timid to report exploitation for fear of themselves being punished or deported.  On the same accord, the administration has increased the difficulty of pursuing legal immigration with increased adjudication scrutiny and procedural barriers.  When legal work authorization is difficult and punishments are harsh, nobody should be surprised that exploited workers are shy to seek redress from the government.

The fact is that the job market demands immigrant labor right now and immigration policies aren’t aligned with reality.  The current labor void compels U.S. employers to pursue migrant laborers, who themselves are compelled to fill the jobs whether legal or not.  Bear in mind the dual interests of immigration law–protecting the U.S. job market and protecting migrant workers from exploitation.  The recent rash of exploited migrant workers is a telltale sign of policy imbalance.  If the U.S. job market was sufficiently manned by U.S. workers then the incentive for labor contractors to exploit foreign laborers wouldn’t exist.  Farmers wouldn’t need “farm labor agencies” to get employees.  There wouldn’t be a surplus of work available to draw unlawful workers from abroad.

The ideal immigration policy should compliment the job market, and such was Congress’ intent with mechanisms like Labor Certifications and visa caps.  The proper balance should emphasize enforcement to protect U.S. workers when the job market is at a deficit, and should encourage immigration and protect migrant workers when the U.S. job market is at a surplus.  The recent “Perfect Storm” is the result of a policy that is blind to market conditions; a policy that restricts legal work avenues when legal migrant workers are needed; a seemingly anti-immigrant policy that has emboldened employers to exploit a reasonably scared foreign workforce.

At the end of the day our current immigration policies aren’t protecting U.S. workers or foreign workers.  ICE may frame the recent raids as success stories, but the overall prognosis is the opposite.  Our immigration system is imbalanced and until the administration realigns its priorities it will continue to spend resources to police problems that are the natural result of its own policies.

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