Enforcement in U.S. immigration

As President Obama reiterated in his State of the Union address, immigration reform will likely entail some combination of easing the path to citizenship for the estimated 11 million undocumented immigrants, and increasing border control and immigration law enforcement. Given that the U.S. already spends about a quarter more on immigration enforcement and border control than on all other federal law enforcement activities combined, it's worth considering where the country could improve enforcement without breaking the bank.

A rapid expansion of personnel and technological resources over the past decade has improved border control chiefly by identifying and targeting areas with historically high volumes of illegal crossings. But building this system out further would be costly, and offer progressively lower returns on investment.

And even if improved border control succeeded in deterring or interdicting more would-be border crossers, the impact would be limited: The vast U.S. borders would be nearly impossible to seal completely, and as many as half of undocumented immigrants enter the country legally, by some estimates.

Although deportations of undocumented immigrants are at an all-time high, at just over 400,000 in 2012, this accounts for a small fraction of the total undocumented population. For this reason, many multiples of the $2.9 billion currently spent on enforcement and removal by U.S. Immigrations and Customs Enforcement (ICE) may be required to significantly reduce undocumented immigrant populations.

Illegal migration is likely to continue as long as there are compelling reasons for foreign citizens to move to the United States -- and there are many, including reunification with family members or a desire to escape persecution. However, a primary motive for most recent immigrants has been economic opportunity, even for immigrants who lack proper documentation to work. An estimated 8 million undocumented immigrants have entered the U.S. workforce, according to the Pew Research Hispanic Center.

If the economic incentive to immigrate illegally could be eliminated, the United States would see a dramatic reduction in illegal immigration. Recognizing the importance of such a strategy, the U.S. Department of Homeland Security has developed programs and enforcement approaches designed to discourage employers from hiring undocumented workers. For example, worksite enforcement programs have targeted employers violating immigration laws with civil and criminal penalties, in some cases seizing assets derived from the employment of unauthorized workers.

Despite efforts by ICE to focus on criminal cases against unscrupulous employers, criminal arrests of business owners and managers who knowingly employ unauthorized immigrants remain fewer than 500 per year. Combined fines and asset forfeitures have reportedly reached annual totals as high as $43.6 million in fiscal year 2010. But averaged across all 8 million unauthorized immigrants in the U.S. workforce, this amounts to less than $5.50 per year (or $0.46 per month). One might imagine that the savings from employing unauthorized workers are orders of magnitude larger. In other words, despite improvements, the risk of criminal charges remains slight and the expected cost of penalties remains small compared to the potential economic gains.

Achieving even these modest enforcement successes has reportedly required over 500,000 case hours per year and a worksite enforcement budget that totaled $126 million in FY 2009. Sufficiently scaling up the existing system of worksite immigration enforcement to more seriously limit unauthorized immigrants' access to the labor market would likely require the huge investment of resources that we have seen, so far, only at the U.S.-Mexico border.

However, the current debate regarding comprehensive immigration reform offers an opportunity to redesign the worksite immigration enforcement system to achieve more efficient enforcement with better intelligence on where undocumented workers are employed.

Employers are required to fill out an I-9 form when hiring a new employee, attesting that they have examined documents establishing the hire's identity and work authorization. But rather than submit such forms to the government, employers are merely required to retain them in their own files. If ICE immigration inspectors want to examine a firm's I-9 forms, they must request them from the employer and wait up to 72 hours to receive them. This is a labor-intensive process with unnecessarily high transaction costs.

If employers were instead required to submit employment eligibility information on all employees -- in the same way they must collect and submit tax ID information -- this could vastly improve ICE intelligence collection and investigation activities.

One approach to developing a mandatory submission system would be through the existing voluntary E-Verify program, which allows employers to check the work eligibility of their employees. If E-Verify were made mandatory, it would place the burden of verifying work eligibility on employers.

That said, mandating the use of E-Verify would be a difficult political battle because it can identify only about half of unauthorized hires due to the misuse of valid identities. And there are real costs to employers and legal workers when legal immigrants or U.S. citizens are incorrectly flagged as unauthorized.

A better approach would be a system that requires employers to electronically submit employees' identity information upon hiring, rather than requiring them to verify the eligibility of their hires.

Such a system would provide significantly improved intelligence, allowing ICE to target employers with a pattern of hiring unauthorized workers. It would largely avoid the problem of denying legal workers employment due to errors in the databases supporting E-Verify.

Given the importance of maintaining access to work and a livelihood for legally authorized workers and maintaining access to a qualified legal workforce for the nation's businesses, any changes to the system of establishing employment authorization will require the input and cooperation of all major stakeholders.

Whether E-Verify becomes mandatory or remains voluntary, it is critical to ensure a fair and timely appeals process to address cases in which authorized workers are erroneously identified as unauthorized.