The Obama administration regularly cuts a break for businesses that violate immigration hiring rules, reducing their fines by an average of 40 percent from what they should be, according to an audit released Tuesday that suggests the government could be doing more to go after unscrupulous employers.
According to the audit, conducted by the Homeland Security Department's inspector general, U.S. Immigration and Customs Enforcement cut one business's fine from $4.9 million to slightly more than $1 million — a 78 percent drop.
Investigators said the reduction is legal, but it may be undercutting the administration's goal of getting tough on businesses that hire illegal immigrants.
"The knowledge that fines can be significantly reduced may diminish the effectiveness of fines as a deterrent to hiring unauthorized workers," the inspector general said.
The report was released the same day that a coalition of business groups wrote a letter to House Speaker John A. Boehner, Ohio Republican, asking him to pass an immigration bill this year. The business groups said they supported Mr. Boehner's list of immigration principles, which would give businesses a new supply of legal guest workers while granting legal status to most illegal immigrants already in the U.S.
While most of the attention in the immigration debate goes to illegal immigrants themselves, analysts say the problem would be much smaller if businesses would abide by employment laws.
Under President Obama, the federal government was supposed to be putting more of an emphasis on going after employers. ICE specifically announced that it would conduct more audits of the I-9 forms all businesses are required to keep demonstrating that their employees are authorized to work in the U.S.
The goal was to try to ramp up pressure on businesses to hire legal workers.
Jessica Vaughan, director of policy studies at the Center for Immigration Studies, said Mr. Obama has talked a good game but hasn't followed through.
"This audit confirms what I've found in reviewing ICE audit records obtained through FOIA," Ms. Vaughan said in an email. "Some field offices are conducting worksite enforcement (albeit on a tight leash) as if they actually mean to deter and punish illegal employment. Others do not take it seriously and are just going through the motions. Their goal is to rack up enough audits so that the administration can use the numbers to claim that it is vigorously enforcing the law."
The inspector general's report said ICE submitted notices totaling fines of more than $52.7 million from 2009 through 2012, but ended up charging only $31.2 million — for a 40 percent break for businesses.
It still marks a huge increase over the Bush administration, which imposed just $1.5 million in fines from 2003-2008.
Investigators said the agency is allowed to reduce fines if it seems the businesses' finances can't handle a large penalty.
The U.S. Chamber of Commerce said the fines in question weren't for hiring illegal immigrants, but for other problems with the I-9 process. The business group said ICE had been chastised by Administrative Law Judge Ellen Thomas, who had ruled in a series of cases that the agency was excessive in its fines.
Faced with that, the chamber said, ICE has begun negotiating lower fines.
"The Obama administration was bringing cases and imposing fines that were completely unreasonable in light of the fact that the employers had not hired unauthorized workers, and instead were being fined for errors in the employment verification process, sometimes thought of as 'paperwork violations,' " chamber Senior Vice President Randy Johnson said in a statement to The Washington Times. "Such high fines were inconsistent with the administration's own guidelines. An administrative law judge stepped in, as well she should have, and reduced those fines, in case after case."
Investigators said overall, ICE showed little consistency in how it applied sanctions. Some field offices gave out far more warnings and far fewer fines than other offices.
All businesses are required to store the I-9 forms submitted by employees that show their legal work status.
Analysts say the I-9 paper-based process is easy to defraud. All sides agree that an electronic system would be better — though many businesses balk at adopting electronic verification without first changing the rest of the immigration system.
In its official reply to the report, ICE didn't address the issue of reduced fines.
The agency said it has tried to be consistent overall with how it goes after employers with warnings and fines and that the differences among field offices are caused by a number of factors.
The agency said it even went back and reviewed some cases to see whether a fine or warning was the right response and that it found the initial decisions were usually correct.
The agency did agree to strive for more consistency in its reporting of information.
Businesses have been an afterthought in much of the immigration debate, which has focused on the estimated 11 million to 12 million illegal immigrants now in the country and whether they should be given a pathway to citizenship.
Business groups say passing a legalization bill is important because it would give them a more certain workforce and would likely increase legal immigration channels, which would mean more workers.
"Failure to act is not an option," a coalition of 636 business organizations said in their letter to Mr. Boehner on Tuesday. "We cannot afford to be content and watch a dysfunctional immigration system work against our overall national interest. In short, immigration reform is an essential element of a jobs agenda and economic growth. It will add talent, innovation, investment, products, businesses, jobs, and dynamism to our economy."
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