Immigration-Related Worksite Enforcement:
Performance Measures
Andorra Bruno
Specialist in Immigration Policy
June 24, 2010
Congressional Research Service
7-5700
www.crs.gov
R40002
CRS Report for Congress
P
repared for Members and Committees of Congress
Immigration-Related Worksite Enforcement: Performance Measures
Summary
In the spring of 2009, the Department of Homeland Security (DHS) issued new guidance on
immigration-related worksite enforcement. In the words of DHS, the updated guidance “reflects a
renewed Department-wide focus targeting criminal aliens and employers who cultivate illegal
workplaces by breaking the country’s laws and knowingly hiring illegal workers.” Under the
guidelines, DHS “will use all available civil and administrative tools, including civil fines and
debarment, to penalize and deter illegal employment.” According to 2008 estimates, there are
some 8.3 million unauthorized workers in the U.S. civilian labor force.
DHS’s U.S. Immigration and Customs Enforcement (ICE) is responsible for immigration-related
worksite enforcement, or enforcement of the prohibitions on unauthorized employment in Section
274A of the Immigration and Nationality Act (INA). The INA §274A provisions, sometimes
referred to as employer sanctions, make it unlawful for an employer to knowingly hire, recruit or
refer for a fee, or continue to employ an alien who is not authorized to be so employed. Today,
ICE’s worksite enforcement program is focused primarily on cases that involve critical
infrastructure facilities and cases involving employers who commit “egregious violations” of
criminal statutes and engage in worker exploitation.
Employers who violate INA prohibitions on the unlawful employment of aliens may be subject to
civil monetary penalties and/or criminal penalties. Criminal investigations may result in
defendants being charged with crimes beyond unlawful employment and being subject to the
relevant penalties for those violations.
Various measures are available to examine the performance of ICE’s worksite enforcement
program. They include Final Orders for civil monetary penalties, administrative fines,
administrative arrests, criminal arrests, criminal indictments and convictions, and criminal fines
and forfeitures. In addition to examining annual changes and trends in the various performance
measure data, these data can be considered in relation to the estimated size of the unauthorized
workforce or the potential number of employers employing these workers. When considered in
this context, ICE’s worksite enforcement program can seem quite limited.
Enforcement activity by the Department of Labor (DOL) is also relevant to a discussion of
federal efforts to curtail unauthorized employment. DOL, which is responsible for enforcing
minimum wage, overtime pay, and related requirements, focuses a significant percentage of its
enforcement resources on a group of low-wage industries that employ large numbers of
immigrant—and presumably large numbers of unauthorized—workers.
Related background information can be found in CRS Report RL33973, Unauthorized
Employment in the United States: Issues, Options, and Legislation. This report will be updated
when new data become available.
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Immigration-Related Worksite Enforcement: Performance Measures
Contents
Introduction ................................................................................................................................ 1
Unauthorized Workers................................................................................................................. 1
DHS Enforcement ....................................................................................................................... 2
Penalties ............................................................................................................................... 4
Civil Penalties................................................................................................................. 4
Criminal Penalties........................................................................................................... 4
Program Performance............................................................................................................ 5
Administrative Fines ....................................................................................................... 5
Administrative and Criminal Arrests ............................................................................... 6
Criminal Prosecutions and Fines ..................................................................................... 8
DOL Enforcement....................................................................................................................... 9
Conclusion................................................................................................................................ 11
Tables
Table 1. Estimates of Unauthorized Employment in Selected Industries, 2008 ............................. 2
Table 2. Final Orders and Administrative Fine Collections, FY2003-FY2009 .............................. 6
Table 3. Administrative and Criminal Arrests in Worksite Enforcement Operations,
FY2003-FY2009...................................................................................................................... 6
Table 4. Criminal Indictments and Convictions Related to Worksite Enforcement
Investigations, FY2005-FY2009 .............................................................................................. 8
Table 5. Criminal Fines and Forfeitures Related to Worksite Enforcement Investigations,
FY2003-FY2009...................................................................................................................... 9
Table 6. Cases and Back Wage Collections in Low-Wage Industries: FY2008............................ 11
Table 7. Cases and Back Wage Collections in Low-Wage Industries: FY2003-FY2008.............. 11
Contacts
Author Contact Information ...................................................................................................... 12
Congressional Research Service
Immigration-Related Worksite Enforcement: Performance Measures
Introduction
In the spring of 2009, the Department of Homeland Security (DHS) issued new guidance on
immigration-related worksite enforcement—the enforcement of prohibitions on the employment
of unauthorized aliens in the United States. In the words of DHS, the updated guidance “reflects a
renewed Department-wide focus targeting criminal aliens and employers who cultivate illegal
workplaces by breaking the country’s laws and knowingly hiring illegal workers.” 1 According to
2008 estimates, there are some 8.3 million unauthorized workers in the U.S. civilian workforce.2
Questions arise as to how rigorous and effective DHS’s worksite enforcement efforts have been
under the Obama Administration and in past years. The department maintains data on several
measures that can be used to examine the performance of its worksite enforcement program.
Enforcement activity by the Department of Labor (DOL) is also relevant to a discussion of
federal efforts to address unauthorized employment. DOL, which is responsible for enforcing
minimum wage, overtime pay, and related requirements, focuses a significant percentage of its
enforcement resources on a group of low-wage industries that employ large numbers of
immigrant—and presumably large numbers of unauthorized—workers.
Unauthorized Workers
According to the most recent estimates by DHS, some 10.8 million unauthorized immigrants
were living in the United States in January 2009.3 The Pew Hispanic Center’s (the Center)
unauthorized alien population estimate for March 2008 was 11.9 million.4 It is widely believed
that most unauthorized aliens enter and remain in the United States in order to work.
The Center has estimated that there were 8.3 million unauthorized workers in the U.S. civilian
labor force in March 2008, representing four of every five unauthorized adults in the United
States at that time. These unauthorized workers accounted for about 5% of the civilian labor
force. In its analysis, the Center found that the unauthorized alien share of the labor force in some
occupations and industries was considerably higher than its 5% overall share.5 Table 1 presents
2008 data from the Pew Hispanic Center on industries with relatively high concentrations of
unauthorized workers.
1 U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, “Worksite Enforcement
Overview,” fact sheet, April 30, 2009.
2 Jeffrey S. Passel and D’Vera Cohn, A Portrait of Unauthorized Immigrants in the United States, Pew Hispanic
Center, April 14, 2009 (hereafter cited as Passel and Cohn, A Portrait of Unauthorized Immigrants, 2009).
3 U.S. Department of Homeland Security, Office of Immigration Statistics, Estimates of the Unauthorized Immigrant
Population Residing in the United States: January 2009, by Michael Hoefer, Nancy Rytina, and Bryan C. Baker,
September 2008.
4 Jeffrey S. Passel and D’Vera Cohn, Trends in Unauthorized Immigration: Undocumented Inflow Now Trails Legal
Inflow, Pew Hispanic Center, October 2, 2008.
5 Passel and Cohn, A Portrait of Unauthorized Immigrants, 2009, pp. 12-16.
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Immigration-Related Worksite Enforcement: Performance Measures
Table 1. Estimates of Unauthorized Employment in Selected Industries, 2008
Unauthorized Workers
Industry Group
(in Industry)
Construction
14%
Agriculture 13%
Leisure & Hospitality
10%
Professional & Business Services
7%
Manufacturing 7%
Source: Jeffrey S. Passel and D’Vera Cohn, A Portrait of Unauthorized Immigrants in the United States, Pew Hispanic
Center, April 14, 2009.
DHS Enforcement
Section 274A of the Immigration and Nationality Act (INA)6 prohibits employers from employing
individuals who they know are not authorized to work. More specifically, the INA §274A
provisions, sometimes referred to as employer sanctions, make it unlawful for an employer to
knowingly hire, recruit or refer for a fee, or continue to employ an alien who is not authorized to
be so employed. These provisions also make it unlawful for an employer to hire an individual for
employment without examining documents to verify the new hire’s identity and work eligibility,
and completing and retaining verification forms, known as I-9 forms. These verification
procedures, commonly referred to as the I-9 process or the I-9 requirements, are separate from the
largely voluntary E-Verify electronic employment eligibility verification system, which is
administered by DHS’s U.S. Citizenship and Immigration Services (USCIS).7
Enforcement of the prohibitions on unauthorized employment in INA §274A—or worksite
enforcement—has been the job of DHS’s U.S. Immigration and Customs Enforcement (ICE)
since 2003.8 Worksite enforcement is one component of ICE’s responsibility to enforce federal
immigration laws within the United States, known as interior enforcement. Employers violating
the INA §274A prohibitions on unlawful employment may be subject to civil and/or criminal
penalties.
The federal government’s approach to immigration-related worksite enforcement has changed
over the years. In 1999, for example, the Immigration and Naturalization Service (INS) unveiled
an interior enforcement strategy, which, as explained by an INS official at the time, gave priority
in the area of worksite enforcement to two types of cases: (1) criminal employer cases, in which
there was a pattern or practice of knowingly employing unauthorized workers, and (2) cases of
employers who abused their workers and who violated multiple laws.9 In the aftermath of the
6 Act of June 27, 1952, ch. 477, as amended. The INA is the basis of current immigration law.
7 For information on E-Verify, see CRS Report R40446, Electronic Employment Eligibility Verification, by Andorra
Bruno. For related legislation in the 111th Congress, see CRS Report R40848, Immigration Legislation and Issues in
the 111th Congress, coordinated by Andorra Bruno.
8 Prior to March 1, 2003, the Immigration and Naturalization Service (INS) of the Department of Justice was
responsible for interior enforcement. The Homeland Security Act of 2002 (P.L. 107-296, November 25, 2002)
abolished INS and transferred most of its functions to DHS as of March 1, 2003.
9 See written statement of Robert Bach, Executive Associate Commissioner for Policy and Planning, INS, in U.S.
(continued...)
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Immigration-Related Worksite Enforcement: Performance Measures
September 11, 2001, terrorist attacks, interior enforcement priorities again shifted. Resources
were redirected from traditional program areas, including worksite enforcement, to national
security-related investigations, and the primary focus of worksite enforcement became removal of
unauthorized workers from critical infrastructure facilities such as airports and military bases.10
Homeland security remains a primary concern of ICE’s worksite enforcement program today. As
described by ICE:
The Worksite Enforcement Unit’s mission encompasses enforcement activities intended to
mitigate the risk of terrorist attacks posed by unauthorized workers employed in secure areas
of our nation’s critical infrastructure.11
In addition, according to ICE, “worksite enforcement investigations often involve egregious
violations of criminal statutes by employers and widespread abuses.” These cases also may
involve additional violations, such as alien smuggling, document fraud, and worker exploitation.12
In written testimony for a 2009 Senate Judiciary Committee hearing, DHS Secretary Janet
Napolitano described ICE’s approach to worksite enforcement under the new guidance issued in
April 2009:
ICE will focus its resources within the worksite enforcement program on the criminal
prosecution of employers who knowingly hire illegal workers in order to target the root
cause of illegal immigration. ICE will continue to arrest and process for removal any illegal
workers who are found in the course of these worksite enforcement actions in a manner
consistent with immigration law and DHS priorities. Furthermore, ICE will use all available
civil and administrative tools, including civil fines and debarment, to penalize and deter
illegal employment.13
In July 2009, as part of its new worksite enforcement strategy, ICE announced it was launching a
new initiative to increase inspections, or audits, of business owners’ I-9 records (see above) “to
determine whether or not they are complying with employment eligibility verification laws and
regulations.” According to ICE, “inspections are one of the most powerful tools the federal
government has to enforce employment and immigration laws.”14
(...continued)
Congress, House Committee on the Judiciary, Subcommittee on Immigration and Claims, Immigration and
Naturalization Service’s Interior Enforcement Strategy, 106th Cong., 1st sess., July 1, 1999 (Washington: GPO, 2000),
p. 13.
10 For further discussion of these policy shifts, see archived CRS Report RL33351, Immigration Enforcement Within
the United States, coordinated by Alison Siskin.
11 See description of the ICE worksite enforcement program on the agency’s website, at http://www.ice.gov.
12 Ibid.
13 Written statement of DHS Secretary Janet Napolitano for U.S. Congress, Senate Judiciary Committee, Oversight of
the Department of Homeland Security, hearing, 111th Cong., 1st sess., May 6, 2009 (hereafter cited as Written statement
of DHS Secretary Janet Napolitano, May 6, 2009).
14U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, “652 Businesses Nationwide
Being Served with Audit Notices Today,” news release, July 1, 2009. According to the news release, ICE was issuing
Notices of Inspection (NOIs) to 652 businesses nationwide, which had been selected “for inspection as a result of leads
and information obtained through other investigative means.”
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Immigration-Related Worksite Enforcement: Performance Measures
Penalties
As discussed above, employers who violate INA prohibitions on the unlawful employment of
aliens may be subject to civil and/or criminal penalties.
Civil Penalties
Under INA §274A, civil money penalties can be imposed for failing to comply with the I-9
employment verification requirements and for knowingly hiring, recruiting or referring for a fee,
or continuing to employ an unauthorized alien.15 A person or entity determined to have violated
the I-9 requirements may be subject to a fine of not less than $110 and not more than $1,100 for
each individual with respect to whom a violation occurred. A person or entity found to have
engaged in hiring, recruiting, referring, or employing violations may be subject to a cease and
desist order and to fines, as follows:
• for a first offense, not less than $275 and not more than $2,200 for each
unauthorized alien with respect to whom the offense occurred before March 27,
2008, and not less than $375 and not more than $3,200 for each unauthorized
alien with respect to whom the offense occurred on or after March 27, 2008;
• for a second offense, not less than $2,200 and not more than $5,500 for each
unauthorized alien with respect to whom the offense occurred before March 27,
2008, and not less than $3,200 and not more than $6,500 for each unauthorized
alien with respect to whom the offense occurred on or after March 27, 2008; and
• for more than two offenses, not less than $3,300 and not more than $11,000 for
each unauthorized alien with respect to whom the third or later offense occurred
before March 27, 2008, and not less than $4,300 and not more than $16,000 for
each unauthorized alien with respect to whom the third or subsequent offense
occurred on or after March 27, 2008.
If ICE believes that an employer has committed a civil violation, the agency may issue the
employer a Notice of Intent to Fine (NIF). A NIF may result in a Final Order for civil money
penalties, a settlement, or a dismissal.
Criminal Penalties
Under INA §274A, employers convicted of having engaged in a pattern or practice of knowingly
hiring or continuing to employ unauthorized aliens may face criminal fines and/or imprisonment.
They may be fined not more than $3,000 for each unauthorized alien with respect to whom the
violation occurred and/or imprisoned for not more than six months for the entire pattern or
practice.
Criminal investigations may result in employers and other individuals being charged with crimes
other than unlawful employment, such as document fraud or harboring unauthorized aliens, and
being subject to the relevant penalties for those violations.
15 Current fine amounts are set forth in 8 C.F.R. §274a.10. They reflect increases that took effect in 1999 and 2008
pursuant to the Debt Collection Improvement Act of 1996 (in P.L. 104-134, April 26, 1996).
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Program Performance
A variety of measures can be used to assess the performance of the DHS worksite enforcement
program. Over the years, such assessments have been complicated by data reporting problems,
the existence of conflicting data, and other issues. Unless otherwise noted, all data presented here
were provided directly to the Congressional Research Service (CRS) by ICE. The paucity of
comparable and/or reliable data for the pre-ICE worksite enforcement program, as indicated by
ICE to CRS, however, limits the ability to place the recent performance data in historical context.
Administrative Fines
As discussed above, INA §274A establishes civil penalties for violations of the I-9 requirements
and for unlawful employment. Table 2 provides annual data on Final Orders for civil money
penalties (also known as civil or administrative fines) and administrative fine collections16 for
FY2003 through FY2009.17
As shown in Table 2, Final Order issuances and administrative fine collections decreased from
FY2003 to FY2006, when both measures equaled “0.” Since FY2006, both measures have posted
gains. These data reflect changes over the years in the use of administrative fines as an
enforcement tool. As noted above, the new DHS guidance on worksite enforcement makes
reference to using civil fines. In written testimony for a 2009 House hearing, Marcy Forman, the
director of the ICE Office of Investigations, discussed ICE’s renewed focus on civil fines:
In crafting our worksite enforcement strategy, ICE has restructured the worksite
administrative fine process to build a more vigorous program. ICE has established and
distributed to all field offices guidance about the issuance of administrative fines and
standardized criteria for the imposition of such fines. We expect that the increased use of the
administrative fines process will result in meaningful penalties for those who engage in the
employment of unauthorized workers.18
Despite the increases in recent years, however, the number of Final Orders for civil money
penalties remains very low relative to the number of U.S. employers. Employers receiving Final
Orders in any year shown in Table 2 represent less than .001% of U.S. employers.19
16 Some employers are on payment schedules that enable them to pay civil money penalties over a number of years.
17 An e-mail from the ICE Office of Congressional Relations to CRS, July 1, 2008, stated that ICE is unable to provide
data on Final Orders and fine collections prior to FY2003 “due to system constraints and the merger of INS and
Customs during FY03.” According to data confirmed by ICE in 2008, however, there were between 500 and 1,100
Final Orders for civil money penalties issued each year from FY1991 to FY1998, between 200 and 350 Final Orders
issued each year from FY1999 to FY2001, and 91 Final Orders issued in FY2002. E-mail from the ICE Office of
Congressional Relations to CRS, February 21, 2008.
18 Written statement of Marcy M. Forman for U.S. Congress, House Appropriations Committee, Subcommittee on
Homeland Security, Priorities Enforcing Immigration Law, hearing, 111th Congress, 1st. sess., April 2, 2009. For a
contrary view about the usefulness of administrative fines, see written statement of ICE official Matthew Allen, in U.S.
Congress, House Committee on Government Reform, Subcommittee on Regulatory Affairs, Is the Federal Government
Doing All It Can to Stem the Tide of Illegal Immigration? hearing, 109th Congress, 2nd sess., July 25, 2006
(Washington: GPO, 2007), pp. 43-53.
19 According to the U.S. Census Bureau’s Statistics of U.S. Businesses (SUSB), there were 6.02 million firms in the
United States in 2006. SUSB data are available on the Census Bureau’s website, at http://www.census.gov.
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Immigration-Related Worksite Enforcement: Performance Measures
Table 2. Final Orders and Administrative Fine Collections, FY2003-FY2009
Fiscal
Number of Final
Administrative
Year
Orders Issued
Fines Collected
2003 52
$267,480
2004 10
$87,946
2005 10
$27,547
2006 0
$0
2007 2
$26,560
2008 18
$470,146
2009 52
$772,219
Source: CRS presentation of data from U.S. Department of Homeland Security, Immigration and Customs
Enforcement, July 1, 2008 (FY2003-FY2007) and April 22, 2010 (FY2008-FY2009).
Note: Administrative fines may be collected in the same fiscal year that the associated final order is issued, or in
one or more subsequent years.
Administrative and Criminal Arrests
Administrative and criminal arrests are other measures of worksite enforcement activity.
Administrative arrests are for civil violations of the INA, such as being illegally present in the
United States. Only a noncitizen can be the subject of an administrative arrest, which represents
an initial step in the process of removing an alien from the United States. It seems reasonable to
assume that most individuals arrested on administrative charges are non-managerial employees.
Criminal arrests include arrests for illegal hiring as well as for identity theft, alien harboring,
money laundering, and other criminal violations. Citizens and noncitizens can be the subject of
criminal arrests, as can non-managerial employees, managerial employees, and employers.
Table 3. Administrative and Criminal Arrests in Worksite Enforcement Operations,
FY2003-FY2009
Fiscal
Number of Individuals Arrested
Number of Individuals Arrested
Year
on Administrative Charges
on Criminal Charges
2003 445
72
2004 685
165
2005 1,116
176
2006 3,667
716
2007 4,077
863
2008 5,184
1,103
2009 1,647
444
Sources: CRS presentation of data from written statement of the Honorable Michael Chertoff, Secretary, U.S.
Department of Homeland Security, for the U.S. Senate Judiciary Committee, February 28, 2007 (FY2003-
FY2004); and from Department of Homeland Security, Immigration and Customs Enforcement, July 1, 2008
(FY2005-FY2007), and April 22, 2010 (FY2008-FY2009).
Note: The same individual may be the subject of an administrative arrest and a criminal arrest; thus, there may
be double counting of some individuals.
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During each year from FY2003 to FY2008, as shown in Table 3, the number of administrative
and criminal arrests in worksite enforcement operations increased; some of the yearly changes, as
from FY2005 to FY2006, were marked. In 2008 congressional testimony, DHS Secretary Michael
Chertoff highlighted the number of administrative and criminal arrests in worksite enforcement
operations in FY2007 as evidence of the progress being made by ICE on the worksite
enforcement front.20
Between FY2008 and FY2009, as indicated in Table 3, the number of administrative arrests
decreased by more than 65% and the number of criminal arrests decreased by almost 60%. The
reasons for these drops are unclear. It may be that they reflect, to some degree, ICE’s stated
renewed focus on employers.
ICE worksite enforcement arrest statistics for FY2009 contain employment position titles for
most individuals who were arrested on administrative or criminal charges.21 Of the total 1,647
administrative arrests that year, employment position information is available for 1,153
individuals. Non-managerial employees accounted for 1,112 of these 1,153 arrests (96%), while
individuals with position titles that included owner, manager, and corporate official accounted for
the remaining 41 arrests (4%).
With respect to FY2009 worksite enforcement criminal arrests, employment position information
is available for 403 of the 444 individuals arrested on criminal charges. These 403 individuals
included 289 non-managerial employees (72%) and 114 individuals with position titles that
included owner, manager, and corporate official (28%).22 By comparison, according to ICE, there
were 135 criminal arrests of employers (including owners, managers, and corporate officials) in
FY2008. This apparent drop in criminal arrests of employers between FY2008 and FY2009
seems at odds with ICE’s stated focus in the worksite enforcement area on “employers who
cultivate illegal workplaces by breaking the country’s laws and knowingly hiring illegal
workers.”23
These administrative and criminal arrests represent a very small percentage of the potential
population of violators. For example, Table 3 shows a high of 5,184 administrative arrests in
worksite operations in FY2008. That year, according to the Pew Hispanic Center, there were an
estimated 8.3 million unauthorized aliens in the U.S. civilian labor force.24 With respect to
criminal arrests, the potential population of employers and workers committing worksite-related
criminal violations is not known.
20 See written statement of DHS Secretary Michael Chertoff for U.S. Congress. Senate Committee on the Judiciary,
Homeland Security Oversight, hearing, 110th Cong., 2nd sess., April 2, 2008.
21 ICE worksite enforcement arrest statistics grouped by position for FY2009 provided by ICE Office of Congressional
Relations to CRS, May 27, 2010.
22 Data provided in e-mail from ICE Office of Congressional Relations to CRS, June 8, 2010. While the FY2008 and
FY2009 employer criminal arrest data are roughly comparable, it should be noted that ICE had different reporting
systems in the two years.
23 Written statement of DHS Secretary Janet Napolitano, May 6, 2009.
24 Passel and Cohn, A Portrait of Unauthorized Immigrants, 2009.
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Criminal Prosecutions and Fines
Table 4 provides data on criminal prosecutions related to worksite enforcement investigations for
FY2005-FY2009.25 These data build on the criminal arrest data in Table 3. As shown in Table 4,
the number of criminal indictments and the number of convictions rose steadily from FY2005
until FY2008 and then fell. It is difficult to draw direct conclusions from these data about the
worksite enforcement program in any particular year. One reason for this is that there can be time
lags between arrests, indictments, and convictions.
Table 4. Criminal Indictments and Convictions Related to Worksite Enforcement
Investigations, FY2005-FY2009
Fiscal Year
Indictments
Convictions
2005 254
156
2006 411
340
2007 750
561
2008 900
908
2009 361
339
Source: CRS presentation of data from U.S. Department of Homeland Security, Immigration and Customs
Enforcement, July 1, 2008 (FY2005-FY2007), and April 22, 2010 (FY2008-FY2009).
Note: A conviction may occur in the same year as the related indictment or in a subsequent year.
Table 5 provides data on criminal fines and forfeitures related to worksite enforcement
investigations that were imposed in FY2003-FY2008. ICE characterizes these data as follows:
Criminal fines and forfeitures include fines imposed by a U.S. District Court as a result of a
criminal conviction, seizures made by ICE and forfeited to the U.S. government, payments
made to ICE in lieu of the seizure and forfeiture of real or personal property, and restitution
payments made by an employer to their unauthorized alien employees as a result of labor law
violations. Due to system constraints, ICE manually tracks criminal fine and forfeiture
statistics.26
As shown in Table 5, worksite enforcement-related criminal fines and forfeitures have varied
dramatically during FY2003-FY2009, although they have remained well above the FY2003 level
in all subsequent years. In light of the various types of fines and forfeitures (as indicated in the
above description from ICE) and associated time lags, which presumably help explain the great
annual variability, it may be that the total for any particular year is less significant than the fact
that criminal fines and forfeitures were being pursued.
25 Comparable data are not available for earlier years.
26 E-mail from ICE Office of Congressional Relations to CRS, July 1, 2008.
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Table 5. Criminal Fines and Forfeitures Related to Worksite Enforcement
Investigations, FY2003-FY2009
Fiscal Year
Criminal Fines and Forfeitures Imposed
2003 $37,514
2004 $2,929,000
2005 $15,822,100
2006 $233,044
2007 $31,426,443
2008 $21,978,918
2009 $32,578,945
Source: CRS presentation of data from U.S. Department of Homeland Security, Immigration and Customs
Enforcement, July 1, 2008 (FY2003-FY2007), and April 22, 2010 (FY2008-FY2009).
In summary, the data presented here offer an available, but limited, means to examine the
performance of ICE’s worksite enforcement program. Some measures, namely issuances of Final
Orders and administrative fine collections, follow a downward trend in the initial years included
and then an upward trend in more recent years. Other measures, namely administrative arrests,
criminal arrests, criminal indictments, and criminal convictions, register increases until FY2008
and then a decrease from FY2008 to FY2009. The data on criminal fines and forfeitures imposed,
the remaining measure, reveal no discernible pattern. More generally, the values of the various
measures for the years shown seem quite small relative to the estimated size of the unauthorized
alien workforce.
DOL Enforcement
While the authority to enforce the INA employer sanctions provisions rests with DHS, INA
§274A does grant DOL the authority to review I-9 verification forms (see above). Under INA
§274A(b)(3), employers must make completed I-9 forms available to DOL officers for inspection.
DOL has separate authority to enforce federal labor laws, including the Fair Labor Standards Act
(FLSA),27 which establishes minimum wage, overtime pay, youth employment, and other
standards.
The Wage and Hour Division (WHD) of the DOL’s Employment Standards Administration (ESA)
administers and enforces the FLSA with respect to private sector workers, state and local
government employees, and certain federal employees. DOL officials historically have been
cautious about delving into questions of work authorization. As reported in a 2007 paper by
Georgetown University’s Institute for the Study of International Migration (ISIM):
Labor investigators express concern that their increased involvement in employer sanctions
might impede their ability to gain the trust of illegal aliens who may be the victims of labor
violations and potential witnesses against employers.28
27 Act of June 25, 1938, ch. 676, as amended.
28 B. Lindsay Lowell, Susan F. Martin, and Micah N. Bump, Worksite Solutions to Unauthorized Migration, Institute
(continued...)
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A memorandum of understanding between DOL and DHS that has been in effect since 199829
describes the respective enforcement roles and responsibilities of each agency. Under the 1998
MOU, WHD investigators are to inspect employer compliance with I-9 requirements in
conjunction with labor standards enforcement only in directed investigations, that is,
investigations not based on complaints. According to the MOU, this limitation “is intended and
will be implemented so as to avoid discouraging complaints from unauthorized workers who may
be victims of labor standards violations by their employer.” During these compliance inspections,
WHD investigators are not to make inquiries about workers’ immigration status and are not to
issue warning notices or Notices of Intent to Fine. All suspected serious violations uncovered by
WHD during these investigations are to be promptly referred to DHS.
While DOL’s direct role in immigration-related worksite enforcement is quite limited, some
maintain that the agency helps reduce unauthorized employment indirectly through its
enforcement of labor laws. This argument is premised on the belief that many employers who
employ unauthorized aliens also violate labor laws. The 2007 ISIM paper notes that employers
have different propensities to hire unauthorized workers, and describes a category of employers
that “knowingly hire[s] unauthorized workers to exploit their labor.” According to the paper,
“such employers may pay salaries in cash, failing to pay their share of social security taxes; and
they may seek unauthorized workers because they are less likely to complain about ill
treatment.”30 Thus, with respect to unauthorized employment, enforcement of minimum wage,
overtime, and other statutory requirements may serve as a means of reducing the economic
incentives to hire unauthorized workers and thus result in decreased demand for these workers.
Some other observers, such as former WHD Administrator Maria Echaveste, however, point out
the limitations of using labor law enforcement to address unauthorized employment. They argue
that many employers who hire unauthorized immigrants do not violate wage and hour laws.
According to Echaveste:
I know firsthand that many employers who comply with other labor standards still hire the
undocumented. Many businesses pay the minimum wage and have barely tolerable working
conditions because there are sufficient undocumented workers willing to accept those terms.
If we care about low-income workers in this country, we need to create pressure to improve
their economic condition by reducing the supply of unauthorized workers.31
To the extent that some employers of unauthorized aliens violate labor standards, WHD’s
compliance activities in low-wage industries may be particularly relevant to efforts to reduce
unauthorized employment. In FY2008, WHD devoted about 35% of its enforcement hours to
investigations in the nine low-wage industries in Table 6. These industries presumably employ
significant numbers of unauthorized aliens (see Table 1). In FY2008, as indicated in Table 6,
WHD collected $57.5 million in back wages for FLSA overtime and minimum wage violations
for about 77,000 workers. Top industries in terms of both the amount of back wages collected and
the number of employees receiving back wages were restaurants, health care, and guard services.
(...continued)
for the Study of International Migration, Georgetown University, October 2007, p. 12 (hereafter cited as Worksite
Solutions to Unauthorized Migration).
29 The MOU was originally signed by ESA and the Immigration and Naturalization Service of the Department of
Justice. It is available in Interpreter Releases, vol. 75, no. 47 (December 14, 1998), pp. 1711-1721.
30 Worksite Solutions to Unauthorized Migration, p. vi-vii.
31 Maria Echaveste, “Target Employers,” American Prospect, October 23, 2005, at http://www.prospect.org.
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Immigration-Related Worksite Enforcement: Performance Measures
Table 6. Cases and Back Wage Collections in Low-Wage Industries: FY2008
Number of
Back Wages
Number of Employees
Industry
Cases
Collected
Receiving Back Wages
Restaurants 3,942
$18,917,992
23,433
Agriculture 1,600
$2,116,712
5,397
Health Care
1,302
$11,403,813
15,768
Hotels & Motels
875
$2,445,094
5,034
Day Care
746
$1,058,579
3,070
Guard Services
633
$13,595,350
13,138
Janitorial Services
507
$3,469,956
5,417
Garment Manufacturing
385
$2,596,986
2,278
Temporary Help
309
$1,945,163
3,368
Total 10,299
$57,549,645
76,903
Source: Department of Labor, Employment Standards Administration, Wage and Hour Division.
Table 7 provides data on low-wage industry cases and back wage collections for FLSA overtime
and minimum wage violations for FY2003-FY2008. As shown in Table 7, the number of cases in
low-wage industries generally decreased between FY2003 and FY2008. Despite this general
reduction in cases, however, back wage collections increased throughout the period. With respect
to the number of employees receiving back wages, this number increased until 2005 and then
began to decrease. In addition, when considered in the larger context of the potential number of
employers in these low-wage industries that may be violating FLSA requirements with respect to
unauthorized workers, or workers generally, the numbers in Table 6 and Table 7, as in the ICE
data tables, can seem quite small.
Table 7. Cases and Back Wage Collections in Low-Wage Industries: FY2003-FY2008
Number of
Back Wages
Number of Employees
Fiscal Year
Cases
Collected
Receiving Back Wages
2003 12,962
$39,595,382
80,772
2004 12,625
$43,141,911
84,897
2005 12,468
$45,783,743
96,511
2006 11,172
$50,566,661
86,780
2007 11,382
$52,722,681
86,560
2008 10,299
$57,549,645
76,903
Source: Department of Labor, Employment Standards Administration, Wage and Hour Division.
Conclusion
It remains to be seen whether the worksite enforcement strategy unveiled by DHS in April
2009—with its focus on employers who knowingly employ unauthorized aliens—results in
increases in Final Orders, administrative fines, employer arrests, criminal indictments and
prosecutions, and criminal fines and prosecutions in the coming years. More broadly, it can be
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Immigration-Related Worksite Enforcement: Performance Measures
argued that the ultimate test for this strategy or any other approach to worksite enforcement by
DHS or DOL is whether it helps reduce the size of the unauthorized labor force in the United
States.
Author Contact Information
Andorra Bruno
Specialist in Immigration Policy
abruno@crs.loc.gov, 7-7865
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