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ICE audits disproportionately target lower-income workers, say immigration experts

On June 15, Immigration and Customs Enforcement (ICE) began an intensified round of employer audits, notifying 1,000 businesses across the country that they would be facing inspections of their employee records. Businesses selected for audits must turn over the I-9 forms, in which they give their Social Security numbers and dates of birth, that their employees fill out when they are hired in order to verify that they employ no undocumented immigrants.

The Obama administration has relied on I-9 audits as a replacement for workplace raids, which were used frequently under the Bush administration and generated a great deal of bad publicity for ICE and the U.S. Dept. of Homeland Security. I-9 audits, according the administration, place more of the burden of enforcement on employers rather than the immigrants themselves.

“There are limited ways in which you can come to the attention of the government,” says Muzaffar Chishti, director of the Migration Policy Institute’s office at NYU School of Law.

It’s rare for immigration authorities to come straight to your door, he says. “The only reason you get visited personally by ICE is if you get a final removal order and you don’t leave.”

Provided that the undocumented avoids encounters with law enforcement, Chishti says, “The only context that someone gets picked up is in the context of a workplace.”

That means that where ICE decides to conduct its audits has important distributional effects. ICE spokesperson Gillian Christensen says that the businesses selected aren’t random: “All ICE audits are conducted based on leads and intelligence.” An ICE press release from the day that the “audit surge” began claims that apart from an “emphasis on businesses related to critical infrastructure and key resources,” the audits target “employers of all sizes,” with an emphasis on industries that are critical to national security, public health or the “minimal operations of the economy and government.”

According to Ian MacDonald, an immigration attorney and shareholder at Littler Mendelson, that isn’t entirely true. ICE targets businesses “within a very narrow set of industries,” he says. “Specifically, you’re looking at industries with a high likelihood of having undocumented workers: agriculture, construction, hospitality, fast food.”

MPI’s Chishti agrees that ICE’s audits target lower-income workers: “From the perspective of a law enforcement officer, you are going to prioritize places where you are going to get a large catch.” As a result, the undocumented workers that ICE catches “are more likely to be blue-collar workers than white-collar workers.” And unlike with race or national origin, Chishti says, “There are no constitutional issues with picking industries.”

The contrast between the experiences of undocumented immigrants in high-skill and low-skill industries was demonstrated in Pulitzer prize-winning journalist Jose Antonio Vargas’ article in the New York Times Magazine, in which he confessed that he was undocumented. In the piece, he explains how he managed to keep his identity a secret, even in high-profile jobs at national newspapers and magazines. During a decade in which two successive administrations doubled the amount of deportations and intensified immigration enforcement efforts, Vargas’ success shows how high-skilled immigrants are less likely than many lower-income immigrants to face the full burden of government enforcement policies.

As Latoya Peterson, a blogger at Racialicious, points out, “Vargas has ascended to the white collar elite – a Pulitzer Prize winning reporter, currently employed at The New York Times.” That makes his experience different from other undocumented immigrants.

Vargas himself points out that the publications that hired him weren’t very worried about getting audited by ICE:

For more than a decade of getting part-time and full-time jobs, employers have rarely asked to check my original Social Security card. When they did, I showed the photocopied version, which they accepted. Over time, I also began checking the citizenship box on my federal I-9 employment eligibility forms. (Claiming full citizenship was actually easier than declaring permanent resident “green card” status, which would have required me to provide an alien registration number.)

The relatively easier time that high-skilled immigrants face in the labor market may come to an end under E-Verify, the online federal program that Republicans have embraced in many different states and would like to see implemented at the national level. Even then, MacDonald says, Vargas most likely would have been safe if E-Verify had been implemented in the publications he worked for. “Assuming that he remained with his current employer, the chances that he’d be identified are much lower than if he had started a new career,” says MacDonald. That’s because under federal law, only new employees, hired after E-Verify is implemented, can be verified using the program.

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