Wages of Citizenship

The Trump Administration’s crusade to transform the US immigration system has included sweeping changes to increase the state’s capacity to locate and remove noncitizen residents. The administration has empowered immigration agents to enter formerly “sensitive” spaces like schools and churches, suspended due process for legal noncitizens, and established immigration jails outside national borders. It made a deal with the Internal Revenue Service (IRS) to use once off-limits tax data to locate up to seven million undocumented workers. Dramatic deportation operations are now underway across the country, with the Department of Homeland Security (DHS) boasting 113,000 arrests and “north of” 100,000 deportations since Trump took office in January. The numbers include a rise in “collateral” arrests and deportations and are likely to rise after Immigration and Customs Enforcement’s (ICE) March 25 repeal of work authorization for 530,000 legal migrants of Cuba, Nicaragua, Haiti, and Venezuela, who have thirty days—until April 24—to depart before they too will be targeted for arrests and deportations.  

Draconian methods were to be expected. Less clear is whether the promised crackdowns threaten the uneasy alliance between the federal government and employers in agriculture, construction, and food and hospitality industries. Despite the “war on terror” redefining the outer limits of executive power to surveil and detain foreign nationals, the workplace has over the past two decades remained largely insulated. The resilience of this arrangement reflects a clear hegemonic interest in cheap and docile labor, which allows for both lower prices and higher profits; a critical supply of health and childcare workers; a vital source of future labor; and close to $100 billion annually in state, local, and federal tax revenues. This is the perspective of US employers, expressed by the notion of “sanctuary businesses,” in which the legal segmentation of the labor market has propelled business growth.¹

Reforming this system beyond all but the most punitive bills has become an exercise in futility. The failure of “comprehensive” reform in the Congress has increasingly relegated immigration policy—as with most policy—to the domain of executive action. Yet the US immigration system runs not on the enforcement of immigration laws, but on their selective nonenforcement. Employers have relied on the state to ignore the exploitation of undocumented labor while holding the credible threat of deportation over workers. This has had the effect of strengthening employer bargaining power generally against all workers—lowering wages, weakening unions, and shifting the politics of work away from collective bargaining and wage-and-hour regulation. The interest in labor that is weak and disorganized has driven US politicians, consciously or not, to adopt the role of petty bosses, threatening the deportation of significant portions of the US workforce. But if Trump can afford to blow up this arrangement, it is because the precarity of the undocumented worker represents the future of labor relations in the US, not its past. How has the uneasy alliance behind work verification lasted so long, and how much longer can it last?

US labor and immigration law

The consensus view among immigration scholars has long been that economic pull factors—not criminal entrepreneurship or the “welfare magnet”—are the primary drivers of US-Mexico migration. This insight informed 1950s efforts to impose financial penalties on employers, as well as the larger policy drift toward work verification in the 1970s. The thinking was that if employers could be coopted into acting as immigration screeners at the point of hire, would-be migrants would lack incentives to migrate in the first place. Meanwhile, the existing undocumented workforce—faced with declining prospects for employment—would be compelled to “self-deport.” As the restrictionist Kris Kobach provocatively asked in a 2008 paper on “enforcement by attrition”: “what if every illegal alien found it difficult to obtain employment in the United States and the risks of enforcement … were to increase for all?”

The 1986 Immigration Reform and Control Act (IRCA) marked the beginning of the current federal experiment in controlling immigration using labor market controls. The law’s “employer sanctions” provisions delegated broad immigration screening authority to the discretion of private employers, who were tasked with verifying identity documents and keeping I-9 records on file. Firms would be subject to random audits and complaint-led investigations, with noncompliers facing escalating civil and criminal penalties depending on the frequency and severity of the offense. This statutory shift was both qualitatively and quantitatively significant. To the tens of thousands of official Immigration and Naturalization Services (INS) personnel, the IRCA added millions of new private immigration screeners: the employers themselves.

As with prior efforts to police unauthorized work in the 1950s and 1970s, business groups intervened to shape the law to their own needs. Lobbyists won key provisions that radically stacked the regulatory deck: the IRCA made an employer’s “good faith” effort to verify documents into an affirmative defense against charges of violating the law, created a signed worker attestation form (effectively shifting the responsibility for illegal employment from employers to workers), and required employers to accept any document appearing reasonably genuine “on its face.” Together, these provisions created an impossibly high burden of proof that an employer “knowingly” violated the law. This legal context, combining functional immunity for employers and self-incrimination for workers, further tilted the workplace balance of power in favor of employers.

The Congress designed employer sanctions to starve undocumented workers out of the labor market. But the law’s coalition included labor and civil rights advocates who made clear that the goal of improving wages and jobs for natives should not “limit in any way the scope of the term ‘employee’” as defined by the National Labor Relations Act (NLRA), nor “limit the powers of … labor standards agencies, or labor arbitrators to remedy unfair practices committed against undocumented employees.” These remarks reflected more than the messy bargaining of cross-cutting coalitions in Congress. They pointed to a deeper tension within theories of employer behavior. “Adoption of employer sanctions would remove undocumented workers from the protections of the Labor Act,” wrote an SEIU organizer and refugee immigration attorney in 1983, when an earlier employer sanctions bill was moving through the Congress, thus encouraging the growth of a supply of low-paid workers with no ability to unionize or remedy unfair labor practices by employers.” The IRCA’s attempt to square this circle has shaped the past forty years of both US immigration and labor law.  

The final version of the IRCA thus saw protecting the employment rights of undocumented workers as not only compatible with, but complementary to, screening out those same workers at the point of hire. But this was magical thinking. The IRCA’s plan to permanently solve unauthorized immigration through a one-time mass amnesty and enhanced controls at worksites and the border failed. Unauthorized migration continued unabated, while immigration and labor policies were now fundamentally at odds with one another. Despite legislative intent, the encroachment of immigration politics into the workplace put existing regulatory regimes into conflict. At stake was the meaning and legitimacy of the employment relationship itself. Did the legal identity of undocumented workers include membership in the community of “employees” entitled to wage-and-hour and collective-bargaining rights? Or were undocumented workers noncitizens subject to removal under immigration law?

Cannibalizing labor law

Attempts to legally “harmonize” the competing goals of protecting and punishing undocumented workers since the mid-1980s have gradually warped the employment relationship. Throughout the 1970s and 1980s the rights of undocumented workers were “settled” business. The National Labor Relations Board (NLRB) repeatedly affirmed the status of undocumented workers as “employees” entitled to bargaining rights, backpay, and reinstatement under federal labor law. A vast repertoire of retaliatory actions against immigrant workers were found to constitute “unfair labor practices,” including threats to report workers’ immigration status, arranging INS raids, and conditioning payment on the disclosure of identity documents.² Enforcement of the Fair Labor Standards Act (FLSA)—the federal wage-and-hour law in the US—was seen by policymakers as both legally uncontroversial and functionally necessary. The Nixon, Ford, Carter, and Reagan administrations all pursued targeted wage-and-hour enforcement in industries with a high incidence of undocumented workers across the US labor market.

It was on the question of collective bargaining that the Supreme Court first began the slow cannibalization of labor protections. In 1976, the workers at Sure-Tan Inc., a Chicago leather manufacturer, authorized the Chicago Leather Workers Union to represent them in collective bargaining against their employer. To break the union, the company’s president sent a letter to the INS requesting a worksite check to deport his employees. When the NLRB ordered the company to cease and desist this unfair labor practice and pay backwages to the deported workers, the company appealed the decision through the courts. Eight years later, in 1984, the Supreme Court ruled that the letter to INS was in fact an unfair practice—but that the workers, having been deported, were ineligible for reinstatement and backpay. 

In effect, the legal identity of a “worker” became subordinate to that of a legal resident. Although Sure-Tan, Inc. v. NLRB did not address whether undocumented workers who remained in the US were eligible for labor remedies, the Reagan administration’s NLRB General Counsel issued new guidelines allowing an employer to make reinstatement conditional on proof of a worker’s legal status. Absent such proof, the NLRB would not seek enforcement for reinstatement or backpay. By the time the IRCA was instituted, the labor protections it supposedly preserved were, in practice, being gutted by the agencies and courts tasked with interpreting and enforcing the law. Unauthorized workers were now obligated to commit identity fraud to gain employment protections. Meanwhile, employers—protected by the law’s extensive loopholes—would continue leveraging the threat of deportation with impunity. 

In 2002, the Supreme Court weighed in on whether undocumented workers who remained in the United States were entitled to backpay under the NLRA. In Hoffman Plastic Compounds, Inc., the court overturned an NLRB order for backpay against that company, which had been found to have violated labor law by firing Jose Castro for union organizing, arguing that IRCA had altered the “legal landscape” by “‘forcefully’ making the employment of illegal aliens central to ‘[t]he policy of immigration law.’” As a result, any worker who fraudulently obtained employment through false documents was ineligible for backpay.³ By selectively emphasizing the punitive aspects of the IRCA’s work verification statutes and downplaying its arguments for labor law protections, the Court functionally voided one half of the employment relationship—the employers’ obligations to labor, regardless of immigration status. 

The upshot of these developments has been to discourage workers from exercising wage-and-hour and collective bargaining rights, while allowing employers to use immigration law as a shield against labor law. These high-profile NLRB and Supreme Court cases are only the tip of the iceberg. A 2004 investigation by the labor lawyer Michael Wishnie, for example, found that 102 of the 184 INS-raided businesses had been subject to a labor agency investigation or proceeding; a 2009 Economic Policy Institute study of 1,004 NLRB elections showed that employers made threats of referral to ICE in 50 percent of cases with a majority of undocumented workers and 41 percent with a majority of recent immigrants.

The federal enforcement regime

Bringing unscrupulous employers to justice has been a mainstay of the rhetoric around worksite enforcement. A “return” to worksite enforcement has been a priority of every presidential administration since the 1990s. Militarized raids targeting workers for arrest and deportation became a signature of George W. Bush’s enforcement regime, with an ICE spokesman explaining that “we’re going for a larger breadth of investigations and bigger civil settlements and criminal fines.” Obama DHS head Janet Napolitano lamented that only 135 of the 6,000 arrested in workplace operations in 2009 were employers and vowed “to take aim at employers and supervisors for prosecution through the use of carefully planned criminal investigations.” Once INS became ICE with the creation of the Homeland Security Act of 2002, the agency’s public-facing reports have at times characterized its “criminal” worksite arrests as primarily targeting exploitative employers.

This rhetoric does not match reality. Civil fines for Form I-9 violations are the principal enforcement mechanism of employer sanctions. Following a long period of decline throughout the 1990s and early 2000s, fines reached a nadir of $0 in 2006 before gradually ramping up during George W. Bush’s second term. Administrative penalties began to surge in the Obama era before reaching a historical peak of $22,597,109.56 in FY 2016. Rising fines, however, belie the relatively small scope of worksite investigations. In any given year, these cover only a fraction of a percent of the over 7 million business establishments in the United States.

While annual data on civil fines is incomplete, the general trend is toward an increasingly small pool of employers. Investigations have not come close to the high water mark of over 11,000 in 1989. The nearly $27 million in cumulative fines over the last two years of Biden’s term were collected from only 360 companies. These enforcement patterns reflect a longstanding tradition, going back to the IRCA’s initial rollout, of “cooperative” dealings with employers. A 1989 field report on IRCA enforcement, for example, found “‘general agreement’ that there was a need to proceed cautiously and exercise deference to the business community” since “arbitrary, high-profile enforcement of the law could lead to congressional repeal of the sanctions provisions.” The INS operating instructions recommended slap-on-the-wrist style settlement “strategies” that included routinely negotiated-down fines to focus resources on the most egregious repeat offenders. As one employer remarked: “Prior to [the IRCA,] INS would come in and be belligerent. They are coming in today in a much more conciliatory way.” 

In contrast to the slim profile of fines on employers, the number of prosecutions has increased dramatically and disproportionately targeted undocumented people. Since the late 1990s, the Clinton-era agenda radically expanded the crimes for which immigrants could be prosecuted and deported. Between 1996 and 2002, the average number of annual prosecutions for immigration-related offenses increased by 87 percent compared to the decade spanning 1987 to 1996. Average yearly prosecutions increased another 182 percent in the period of Bush’s second term, reaching new heights during Obama’s two terms in office. Despite periodic peaks during Trump’s middle two years, these numbers remained roughly consistent before dropping precipitously in 2020 and then during Biden’s first and only term.

This recent drop should be understood within the larger context of changing directives in Trump’s Justice Department, Covid-19 related “turnaways” at the border, and the Biden administration’s decision to “surge resources” to the southern border as the migrant “crisis” became increasingly politicized.

An increasing number of arrests likewise masks which parties to the employment relationship get targeted by employer sanctions. In every year since 2005, “administrative arrests” and criminal arrests of employees for unlawful presence have overwhelmingly exceeded arrests of owners and employers.⁴ During Obama’s two terms, employers represented 39 percent of criminal worksite arrests and 13 percent of total worksite arrests (criminal and administrative). During Trump’s first term, employer arrests plummeted to 11 percent of criminal and 4 percent of total worksite arrests. The most recent data on worksite enforcement is not available, but ICE data from 2021 and 2022 suggests a marked decline of worksite arrests more generally—reflecting the Biden administration’s focus on reducing “mass” worksite arrests.  

The track record of corporate prosecutions for immigration crimes tell the same story. Data from the Duke and University of Virginia Corporate Prosecution Registry show that corporate prosecutions for immigration crimes have not exceeded 30 cases annually since 2001. While prosecutions saw a relative resurgence in the DHS era, these cases rely on settlement strategies and plea deals resulting in symbolic fees, compliance protocols (e.g. E-Verify), and workforce restructuring (i.e. firings and deportations) that harm workers but do little to deter either the systemic employment or exploitation of undocumented workers in the labor market. Despite highly publicized “wins,” including a much-vaunted $95 million fine levied against a national landscaping company in 2017, the number of corporate immigration prosecutions has continued to decline through both the Trump and Biden administrations.

E-Verify and the states

Whereas the work authorization campaigns of the 1950s through 1980s were driven by the organizational strategies of nativist labor unions and the NAACP, these groups had largely abandoned the policy by the late 1990s. Employer sanctions lost credibility among liberal supporters after a 1990 GAO report found evidence of “widespread discrimination,” an inconvenient truth given the AFL-CIO’s increasing reliance on the Latino immigrant community as an organizing base. But the lost cause of work verification has been taken up by states looking to reverse decades of anemic enforcement. This reemergence of “employer sanctions” reflects broader shifts in the coalitional politics of restriction. Since 2007 work verification has principally been the project of ideologically conservative legislators with complex and sometimes contradictory views on the virtues of restrictionism. 

Arizona’s 2007 Legal Arizona Workers Act (LAWA) became the first state law since 1986 to challenge the federal government’s monopoly over matters of workplace enforcement. Arizona went far beyond IRCA by mandating electronic verification requirements for all private employers and imposing stringent penalties for noncompliance, including the much touted “business death penalty.” Laws empowering states to criminalize and detain undocumented people have previously been rejected by the federal courts as improper preemptions of federal authority. In 2011, however, the Supreme Court ruled (Chamber of Commerce v. Whiting) that state-level work verification mandates like LAWA were constitutional under an obscure IRCA provision permitting state “licensing” exemptions. 

Since LAWA first came on the scene, over twenty states have launched stringent work verification schemes. The most formally strict of these are geographically clustered among the southern “new destination” immigration states—across the Sunbelt South and West, and along the Gulf Coast—that saw rapid demographic change throughout the 1990s and 2000s. Defined by “right to work” laws, historically segregated labor markets, and rural poverty, these states feature entrenched GOP majorities and state government trifectas reflecting an increasingly disciplined anti-immigrant ideological agenda. 

As the national mood once again darkens on immigration, new work verification bills in GOP strongholds like Idaho, Nebraska, Ohio and Utah seek to expand or toughen employer penalties under existing work verification laws. The rescaling of workplace enforcement to the states and the local coalitions behind it have produced more punitive state enforcement regimes—for workers. Even the most stringent state laws include generous exemptions for small businesses, agricultural workers, and employers of domestic workers. The laws borrow the same compliance architecture as IRCA that assumes the “good faith” of employers who enroll—even if selectively—in the E-Verify system. But their affirmative defenses are often greater. While IRCA forbids employers from using or seeking out information about an employee’s immigration status for purposes of retaliation, employers who suddenly choose to “verify” their employees are protected by state laws against wrongful termination complaints as a result of E-Verify screening.⁵ These shotgun “reverifications” are routinely used as a pretense for mass firings by companies even in non-E-Verify states, upending lives in the process.

Despite stringent requirements, state agencies have adopted a similar model of “cooperative” nonenforcement of work verification laws. Several states—including Mississippi, Utah, and Arizona—have not made serious efforts to monitor firm compliance and do not even aggregate their own audit data.⁶ The county attorneys tasked with enforcing Arizona’s work verification law, for example, have stopped fielding complaints; and Arizona’s Attorney General has issued only three orders against firms since 2007. Public records show that North Carolina’s Department of Labor has audited only 52 firms since the law’s passage, amounting to nine formal violations and zero penalties issued. Georgia has audited nine firms since 2011 with zero penalties issued.

The case of South Carolina is particularly instructive. The state boasts one of the most robust state work verification programs in the country, having investigated 30,173 employers since 2012, or 26 percent of businesses operating in the state.⁷ Noncompliant firms—roughly one-sixth of those investigated as of 2018—are required to submit quarterly reports on new hires for one year. Yet the state’s audit system has favored scale over substantive enforcement. In 2011 Catherine Templeton, then head of South Carolina’s Department of Labor, Licensing, and Regulation, preemptively scaled back the program’s audit department from 22 to three employees and slashed funding from $2 million to $250,000. On-site audits shifted to remote investigations and a “paper audit” system that heavily relied on employers to “self-report” their compliance with the South Carolina Department of Labor. A 2017 investigative report discovered that none of the South Carolina businesses placed on probation for E-Verify violations had their businesses licenses suspended or revoked. 

This familiar pattern repeated when 2023 Florida Governor Ron DeSantis signed one of the most punitive state immigration laws in the last decade. Alongside draconian provisions instituting immigration checks at hospitals, stricter ID controls, and criminal penalties for transporting an undocumented person across state lines, SB 1718 revamped the state’s E-Verify program extending work verification requirements to private firms employing 25 or more employees. Unsurprisingly, DeSantis has come under fire for a failure to prosecute even a single employer since SB 1718’s passage. In a familiar pattern, DeSantis has taken aim at Florida lawmakers for failing to appropriate adequate funds for enforcement while mounting symbolic enforcement measures against non compliant business owners. While a new hastily signed immigration law imposes even harsher penalties on immigrants—including the death penalty in certain cases—it contains no provisions expanding the funding or scope of workplace enforcement. 

The politics of nonenforcement and noncompliance have been aided by the technical limitations of E-Verify itself. Even as advances in biometrics and increasingly integrated private and public databases harbor the potential to perfect the panopticon of workplace enforcement, E-Verify has been plagued by selective enrollment, gameable protocols, and widespread “fraudulent compliance” that have led many to discredit the tool as yet another ineffectual and unnecessary burden on employers: a 2009 report found that roughly half of all unauthorized workers used fraudulent identity documents to obtain work authorization under E-Verify. Although a 2012 follow-up study reported that 94 percent of “Final Non-confirmations” were accurately issued to unauthorized workers in 2012, this number elides the high number of individuals mistakenly confirmed as employment-authorized with fraudulent social security numbers. The first Trump administration, meanwhile, moved to cut funding for E-Verify by eight percent.

The forward march of citizenship

Despite formally “tough” policies, the persistent absence of meaningful enforcement raises the question of what these laws are really about. As with IRCA, weak enforcement has not spared undocumented workers from the perverse effects of a deepening legal division of labor. State work verification policies have been linked to lower hourly wages, decreased labor market mobility, and greater rates of informalization and self-employment among undocumented workers. While the economics profession has produced research showing that state-level E-Verify mandates reduce employment by undocumented workers, diminished prospects for formal employment in states with E-Verify have predictably driven undocumented workers further into the shadows outside the reach of verification schemes.⁸ E-Verify laws doubled the self-employment rate in Arizona. Other states experienced declines in the agricultural labor force, likely driven both by the exit of workers from the farm sector and movement to “off-the-books” employment.

Shifting coalitions have reversed the traditional means-end logic underlying employer sanctions. Rather than seeing labor market restrictions as a means of strengthening the bargaining power of native workers—as was the case leading up to IRCA—recent efforts have positioned anti-immigration reforms and work verification schemes as a substitute for the New Deal model of capital-labor relations. This explains why notoriously anti-labor groups such as ALEC and the Heritage Foundation have supplied policy drafts and support favoring draconian work verification laws. For these organizations, workplace enforcement complements rather than contradicts the larger project of making labor into a malleable and cheap commodity.

This is the project of the Heritage Foundation’s now-infamous Project 2025 playbook. The extensive policy guide advocates a two-pronged strategy calling for legislative and administrative action to “limit the classes of aliens eligible for work authorization” while replacing the adversarial model of New Deal labor relations with “a more cooperative model run jointly with management that focuses solely on workplace issues.” In addition to supplanting labor unions with a “cooperative” model involving employers, the document advises eliminating “full employment” from the Federal Reserve’s mandate, promoting “experimentation and reform” by enabling states to seek exemptions from federal labor laws, and opening “substantive” employment standards up to negotiation at the shop level. Rollbacks of labor and employment protections are accompanied by plans to phase out the H-2A and H-2B visa programs, institute citizen employment quotas in federal contracts, and relax discrimination safeguards such that “private employers are free to prefer our own countrymen.” The question, then, for the Trump era is not simply whether the state will finally “enforce” its immigration laws. But rather: under what conditions will these laws become enforceable? We can trace the outline of this vision in Trump’s assault on federal workers unions and the NLRB, as well as the ever expanding ambit of deportations. It may be that the undocumented worker is not a relic of the past, but a model for the future in which all workers are expendable, perhaps even deportable, with no protections whatsoever.

Alternate paths are possible. In 2021, the DHS released a memo announcing a strategic shift in worksite enforcement: the strategy sought to reduce demand for “illegal employment” not only by targeting employers, but by “increasing the willingness of workers to report violations of law.” In 2023, DHS Secretary Alejandro Mayorkas announced a new policy, dubbed Deferred Prosecution for Labor Enforcement (DALE), to use the department’s prosecutorial discretion to protect noncitizen workers involved in labor actions from deportation and removal actions. The program enrolled 7,700 workers as of October 2024. As with other uses of prosecutorial discretion granting amnesty to victims of violent crimes and human trafficking, DALE extended two (and then four) years of amnesty for workers engaged in labor disputes. But this was a small step. Any genuinely pro-worker policy would require at least three things: an end to the brutal political march of administrative arrests and deportations, a generalized amnesty for the 13.7 million undocumented immigrants already in the country, and changing the patterns of American foreign policy and international development that create forced labor migration in the first place. This would mean nothing less than changing the bipartisan common sense of the U.S. political system.

Employer sanctions, in many ways, embodied the spirit of the times. Signed into law during a moment of high populism and wide ranging deregulation, the workplace-enforcement regime of US immigration law was a symbolically “pro-worker” policy that achieved one amnesty while strengthening employer power over the divided workforce of the future—which is our present. What has been left is an intrusive regulatory provision applied selectively. As much as the business community may have resented being made into immigration screeners, the law has accorded employers a high degree of discretion to gather and weaponize information about their employees’ immigration status with a minimum of consequences for themselves. It has consequently had the perverse effect of cultivating an interest in punitive immigration laws among migrant-dependent employers. For four decades, this weapon has been put to active use. But the unbalanced scales of justice in the labor market—the rights and obligations of employment against the regulation of citizenship—are tilting fast and threatening to topple. 

Footnotes