by Marielena Hincapie

Day in and day out, millions of low-wage immigrant workers across the United States face wage theft, inhumane health and safety conditions, and other forms of discrimination and exploitation that are the modern day equivalent of indentured servitude. They are living in an increasingly anti-immigrant environment that has witnessed the resurgence of white supremacist groups.

Having left their home countries because of economic desperation, immigrants find themselves in a legal labyrinth where the current immigration system provides them with little means to work and contribute to society lawfully. According to the Pew Hispanic Center, as of 2005, undocumented immigrants represent 30% of the foreign-born population, while naturalized citizens and lawful permanent residents represent 31% and 28% of all immigrants, respectively.¹ One out of every five low-wage workers is undocumented,² and is concentrated in dangerous and low-paying industries such as agriculture, cleaning, construction, food service, and other low-wage occupations.³ One of the reasons we have such a sizable undocumented population is because the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 made fundamental changes that severely limits how people can regulate their immigration status.

Unfortunately, policymakers at the federal level have failed to seek true solutions to these complex societal challenges, to roll back many of the draconian provisions of IIRIRA, and to take a broader longer-term approach to growing international migration resulting from globalization and the free trade policies promoted by the United States government. Their lack of leadership has left many lawmakers at the state and local level feeling they need to resolve the “immigration problem” themselves. This coupled with the fact that many immigrants are settling into new states that were unaccustomed to receiving immigrants has helped fuel the anti-immigrant and immigration restrictionists' sentiments.

There has been an onslaught of proposals at the federal, state, and local levels that promote hate and fear. Even if such bills and ordinances are defeated, they have a chilling effect on both documented and undocumented immigrants. Mainstream media and a few key restrictionist spokes-people (such as Dan Stein of the Federation for American Immigration Reform and Mark Krikorian of the Center for Immigration Studies) have focused public attention on mushrooming state and local legislative proposals to restrict immigrants' access to safety net programs, limit their employment opportunities and rights, limit their ability to rent an apartment, and subject them to racial profiling and harassment. According to the National Conference on State Legislatures, 570 bills concerning immigrants were introduced in state legislatures around the country in 2006. At least 84 bills were enacted into law in 32 states. One of the anti-immigrant proposals that has received a lot of publicity is the ordinance passed in Hazelton, PA in July 2006. The proposal denies undocumented immigrants the right to rent housing, strips local government contracts from employers found to have hired undocumented workers, and turns average people into "snitches" increasing discrimination and fear in the local community. The Hazelton measure embroiled in litigation has now been replicated in several communities across the country. However, at least two other local communities that followed Hazelton's footsteps have been stopped by federal courts that have granted temporary restraining orders against the implementation of those measures in Escondido, California and Valley Park, Missouri.

Despite all the hatred and exploitation, many immigrants have deep roots in communities across the United States and call this country their new home. Their courage and strength was evident during the spring of 2006, when their chants "Aqui Estamos y No Nos Vamos (We Are Here and We're not Going Anywhere)" echoed in the air for days as they took to the streets in historic numbers in large cities and small towns alike. They demanded legalization for their families, as well as dignity and respect for their civil and human rights. These proud examples of civic participation culminated in over one million people marching on May 1, commemorating both International Workers' Day and a Day Without Immigrants.

Proponents of the anti-immigrant proposals at the state and local level aim to make life so difficult for immigrants that they will leave voluntarily. This fallacy fails to take into account that immigrants are by their very nature survivors. In order to make a better living for their family in the United States and back in their native country, immigrants will opt to go deeper into the shadows here if that is what it takes to survive.

Since the historic marches last spring, we are witnessing a similarly flawed rationale from the federal government in its new and improved immigration enforcement efforts purportedly aimed at eliminating the “job magnet” from undocumented workers. One such program is the so-called Social Security Administration's (SSA) "no-match" letters, which are letters sent by SSA to employers and workers when their name and SSN do not match the agency's records.

The SSA no-match letter notifies workers and their employers of this discrepancy, ostensibly because employees are not receiving proper credit for their earnings, which can affect future retirement or disability benefits. When the agency is unable to credit a worker's earnings, those are posted in the Earnings Suspense File (ESF). From 1937 to 2005, the ESF grew to approximately $520 billion in wages, representing about 255 million wage reports that could not be posted correctly. There are many legitimate reasons why a worker might have a no-match including typographical errors, a change in marital status that reflects a name change, or the use of compound last names. Although the no-match letter expressly states that the letter makes no statement about the worker's immigration status and proves no wrongdoing, employers have precipitously assumed the receipt of such a letter means the workers are undocumented. Other employers who may know their workers are in fact undocumented use the letter conveniently if the worker becomes a "troublemaker" by asserting her workplace rights.

Although it started as a benign program administered by SSA to benefit workers, the no-match letters have resulted in yet another tool for employers to bust union organizing and depress working conditions for all workers. For example, in July 2006, during a heated legal battle over recent union election results, at least 24 Latino immigrant workers at a modular building construction company in North Carolina were suspended without pay because they were listed on a no-match letter. The 24 workers were all union supporters.

The SSA no-match letter has also become a de facto employment eligibility verification system that has resulted in tens of thousands of low-wage immigrant workers (including documented workers) being displaced from work. In July 2006, the Department of Homeland Security (DHS) proposed a rule that would require employers to take certain steps after receiving the no-match letter. The DHS proposal creates a presumption that an employer has “constructive knowledge” that the person is undocumented if the information has not been corrected.

Already, employers have begun implementing this proposed rule even though it is not yet law. One example is the Cintas Corporation, a uniform cleaning and supply manufacturer based in Mason, Ohio. Cintas has been fighting a union organizing campaign, and it began implementing no-match procedures immediately to fire workers.

As the immigration reform debate has heated up over the last year, the Immigration and Customs Enforcement (ICE) agency has become more aggressive in its enforcement efforts by going after larger corporations to try to scare companies into cooperating with it. This is also a way for the Bush Administration to show state and local actors that the government is indeed enforcing the law. To that effort, the federal government created the Secure Border Initiative that went into effect in April 2006 in which it has placed a priority on conducting "robust" worksite raids.

These worksite raids are based on the faulty foundation of employer sanctions that have actually turned out to be sanctions against workers. Employer sanctions were created under the Immigration Reform and Control Act (IRCA) of 1986 when Congress made it illegal for employers to “knowingly” hire an undocumented worker. Congress inadvertently created labor and employment law policy as they regulated the employment relationship through IRCA. By all accounts, the employer sanctions system has failed to deter employers who recruit and hire undocumented workers. On the other hand, this new system has resulted in unscrupulous employers using IRCA's verification requirements selectively when workers come forward to exercise their civil and labor rights. Despite the failings of the employer sanctions system, policymakers have continued to build on it as the bedrock of our immigration enforcement system. When ICE conducts a raid at a worksite, the workers are always placed into deportation proceedings, but the employers are not necessarily held liable for knowingly hiring undocumented workers. Indeed, sanctions are infrequently enforced against employers, who consider any fines they receive as a cost of doing business. Workers who are deported often return to the United States unlawfully back to the same employer or quickly find some other job.

An immigration raid often serves as a revolving door for the employer to hire another batch of undocumented workers at even lower wages than those who were detained and deported. This is more common when there has been a union organizing campaign or when workers have otherwise worked collectively to improve their working conditions.

On December 12, 2006, ICE conducted its largest immigration nationwide raid against one employer (Swift & Co.) in the agency's history, arresting almost 1,300 workers across the country. ICE exploited Americans' legitimate concerns of identity theft by claiming that the Swift raid was aimed at ending identity theft rings. In reality, taxpayers paid for a massive military-style operation where there was a ratio of one ICE agent for almost every one immigrant detained. According to immigrant and worker advocates, ICE agents engaged in racial profiling by dividing workers based on their color. In some plants, light-skinned or Anglo-looking workers were taken out of the line and given a blue bracelet which meant they would not be interrogated. All others were taken aside for questioning about their immigration status, including lawfully documented immigrants who were allegedly detained as well.

Just as the Swift raids in December sent a chilling wave of fear throughout immigrant communities across the nation, so did ICE's stealth operation at the Smithfield Packing Co. in Tar Heel, North Carolina, on January 24, 2007 where 21 workers were detained. Children were kept from school, local grocery stores saw a drop in customers, and soccer fields saw little activity. Employers Cooperate with Programs

One of the commonalities between the Swift and Smithfield immigration operations is that both companies were cooperating with government officials. Swift was participating in the Basic Pilot program. Authorized by the 1996 immigration law, the Basic Pilot program is a voluntary internet-based electronic verification system in which employers can verify workers' documents directly with the SSA and DHS databases. Independent evaluations of the Basic Pilot have determined that there are numerous inaccuracies in the databases resulting in the inability to accurately confirm the work authorization of many immigrants. Advocates have raised concerns that it is likely to lead to increased employment discrimination. Despite its problems, Republicans and Democrats alike have been touting the Basic Pilot as the panacea to deal with undocumented workers. The Swift raid was a testament that the Basic Pilot is not the “magic bullet” that policymakers claim it is since it cannot detect when undocumented workers have used legitimate documents that will clear the government's databases. Additionally, the Basic Pilot cannot detect when an employer abuses the system by providing workers with valid documents that belong to someone else or simply fails to run undocumented workers through the system.

Smithfield was participating in a new program called the ICE Mutual Agreement between Government and Employers (IMAGE). Launched by ICE in July 2006, this new immigration enforcement program purportedly assists employers with maintaining the integrity of their worksite through “self-policing” and compliance with federal immigration law in their hiring and employment practices. The IMAGE program combines the SSA no-match program, the Basic Pilot program, and other similar enforcement tools all into one. The main problem with this collaboration between ICE and Smithfield is that this company has been involved in a long and contentious labor dispute with the UFCW and the mostly African-American and Latino workers who are trying to elect a union. ICE should not be partnering with a company like Smithfield which has a long history of pending labor disputes. Policies Undermine Workers' Rights

These immigration policies provide unscrupulous employers with government-sanctioned tools that help companies undermine all workers' rights. Such programs cannot address the underlying issue of undocumented workers. They only result in undocumented workers being pushed into an underground cash economy. Workers and employers alike will continue to find ways around these programs. So long as migrants do not have sufficient economic opportunities in their home country to provide for their families, and so long as employers see migrants as an attractive pool of low-wage workers who they can easily exploit with relatively few consequences under labor or immigration law, these policies will not deter either immigration or an undocumented work force.

Given the Secure Border Initiative and the Bush Administration's efforts to appear to be tough on immigration enforcement while hoping to negotiate an immigration reform bill, we can expect to see more ICE raids. As we saw with the groundswell of immigrant organizing last spring, immigrant communities are continuing to organize in response to these attacks. They are demanding comprehensive immigration reform that respects the civil and human rights of all people living in the US. Immigrants are also calling for a moratorium on all raids, they are holding vigils, press conferences, and visiting elected officials to pressure ICE to stop terrorizing their communities. As efforts are underway for May Day marches, we are sure to start hearing their chants once again: Aqui Estamos y No Nos Vamos.

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¹ Jeffrey S. Passel, Size and Characteristics of the Unauthorized Migrant Population in the US (Pew Hispanic Center, Mar. 2006).

² Ibid.

³ Jeffrey S. Passel, Unauthorized Migrants: Numbers and Characteristics (Pew Hispanic Center, June 2005).

Marielena Hincapie is the director of programs and staff attorney for the National Immigration Law Center. For more information, contact NILC, 3435 Wilshire Blvd., Suite 2850, Los Angeles, CA 90010; www.nilc.org.