Obama's Secret Anti-Immigration Campaign

By David Bier

President Obama’s recent decision to defer deportations for certain children of undocumented immigrants and his administration’s lawsuit against Arizona’s tough immigration law could leave the impression that he wants to encourage immigration. Some have even claimed that he has failed to enforce immigration laws. But behind the scenes, the president has waged an anti-immigration regulatory campaign as tough as any in recent history.

This administration has raised fees, added new regulations, and targeted employers with greater zeal than any other. Almost immediately upon their arrival in Washington, Obama administration officials made hiring legal migrant workers more difficult. In May 2009, the U.S. Department of Labor finalized a rule that reversed changes to the H-2A agricultural visa program by the Bush administration which had made employing temporary workers easier. Other new rules essentially guarantee that few farmers will ever be able to hire legal immigrants.

These regulations implemented in 2010 increased the minimum hourly wage for foreign workers by more than a dollar to $9.48. Should it be raised again, employers would have to pay the higher wage, even if the raise occurred while a previously established H-2A contract was in effect. The new rules also prohibit migrants from performing “incidental agricultural work” outside their job description—employers can be banned from the program if such work occurs.

“We’re trying to do it right, and we’re the ones who are getting punished,” Al Pedigo, a Kentucky tobacco farmer, told his local newspaper last year. “I feel like the government is discouraging us from using these workers, and I’m sure they are, but there just aren’t other workers to do this physical, seasonal work.” Pedigo said his labor consultant increased his fee by 70 percent in 2011 from $2,000 to $3,400—a cost that comes on top of the H-2A paperwork, which takes Pedigro at least an hour each day to complete correctly.

Even one missed document could lead to fines of up $1,500 per employee. To make matters worse, the Obama administration seems determined to ensure that farmers pay the hefty fines that come with the regulations. Previously, state workforce agencies were required to verify the documentation for immigrant work referrals, but the 2010 rules shifted that responsibility to employers, exposing them to liability should they be audited.

Such audits—known as “silent raids”—have also escalated since President Obama assumed office. In the past, Immigration and Customs Enforcement (ICE) typically averaged around 400 audits per year, but 2011 saw the number rise to nearly 2,500. At the current pace, this year’s total could surpass 3,000. The audits have led to a huge increase in penalties and fines. In just three and a half years, ICE has imposed nearly $100 million in fines, more than the previous eight years combined.

New regulations also substantially increase employers’ risk of being sued. For example, Labor Department requirements mandate U.S. employees be treated similarly to migrants, but Obama officials created a new definition of “corresponding” treatment that could be interpreted by courts to include the housing, transportation, and in some instances, meals that H-2A regulations require employers to supply to migrants. Disgruntled employees who are citizens or permanent residents could sue under the ambiguous definition and potentially collect damages.

The Obama administration has also targeted highly skilled workers. As part of its 2009 stimulus package, the administration issued regulations that essentially prohibit companies that participated in the financial bailouts from hiring H-1B temporary highly skilled foreign workers, making the program even more inefficient. The following year, officials increased H-1B visa processing fees for firms with more than 50 employees from $325 to as much as $2,300. At the same time, officials began to deny an unprecedented number of highly skilled visa applications.

After his deportation deferral decision, the president claimed he wants to “mend our nation’s immigration policy, to make it more fair, more efficient.” But he has not made it fairer or more efficient for employers—quite the opposite. As deportation levels have risen to record highs, farmers throughout the country struggle with labor shortages and have cut acreage and output. Meanwhile, technology firms have expanded operations in Canada and other countries to more easily hire the skilled workers they need.

President Obama may benefit politically from a pro-immigration image, but it is about time he actually earned it.

David Bier is an immigration policy analyst at the Competitive Enterprise Institute

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