As California's gubernatorial campaign comes to an end, the issues raised by Meg Whitman's hiring, and then firing, of an unauthorized worker as her housekeeper have yet to be resolved.
The controversy was arguably the game changing event of the campaign as polls indicate that it appears to have shifted public opinion, especially among Latino voters, decisively in Jerry Brown's favor.
But controversies like these are likely to happen regularly in California and elsewhere, because the laws surrounding the hiring of illegal immigrants are hard to enforce and resources spent on enforcing them minimal.
That in fact may be exactly what Congress intended when for the first time in the nation's history, it imposed fines against employers who hire illegal immigrants, even on a part-time basis, as part of the landmark 1986 Immigration Reform and Control Act.
The provision was part of a "grand compromise" between pro-immigrant advocates who successfully pushed to provide amnesty to 3.5 million illegal immigrants and immigration restrictionists who feared that the amnesty would open the floodgates to uncontrolled illegal immigration into the U.S.
But the law was virtually unenforceable for two reasons. First, under the 1986 law, fining an employer requires proving that he or she knowingly hired an undocumented worker. The initial fines imposed – $250 to $2,000 for the first offense - were also not much of a deterrent, and have not changed since 1986. Moreover, the law does not require employers to verify whether documents provided are authentic or not. In fact, as a report by Michael Fix and Paul Hill pointed out, the 1986 law requires employers to accept documents that "reasonably on their face appear to be genuine."
The task was complicated even further because prospective employees could provide any two of some 29 possible documents, reduced last year to 26. It was also only last year that regulations were changed [PDF] to require that documents presented to employers not be expired.
Over the years, almost all the funds for immigration enforcement have been spent on "securing" the U.S.-Mexico border and only a fraction – some 10 percent – spent on enforcement of employer sanctions.
Between 1991 and 1998, an average of 6,600 work site enforcement actions were completed, according to the Migration Policy Institute. But between 2000 and 2003, the period during which Meg Whitman hired her housekeeper, the cases completed by Immigration and Customs Enforcement fell to less than 2,200 each year, comprising only 3 percent of total cases it handled. In 2004, only three notices of intent to fine were issued.
In short, a 2005 Migration Policy Institute report [PDF] concluded, "employer sanctions have not become an effective tool for enforcement."
The total number of fines [PDF] imposed has crept up in recent years but is still a paltry sum – last year an estimated 38 fines for a total of $1.3 million were imposed compared to 18 in 2008, two in 2007 and zero in 2006. Of the $1.3 million, only $565,000 was collected.
What's more, eager employers wishing to verify whether those on their payroll or seeking employment are in the country legally would encounter a computerized system not set up to handle the likely heavy volume of traffic.
The E-Verify system that allows employers to check applicants is now used by 61,000 businesses. If it were made mandatory it would have to be able to serve 7.4 million businesses and eventually be able to respond to 63 million inquiries each year on new employees alone, a GAO report has predicted. The cost would also be staggering: nearly $1 billion.
Last year, ICE announced that it would drastically step up enforcement actions against employers, going so far as to say that it would impose not only civil penalties but criminal ones as well.
But this new policy in practice only extends to businesses and larger employers, not to the millions of individuals who hire unauthorized workers as housekeepers, nannies, gardeners, painters, cooks and busboys.
Because California has the largest number and share of undocumented workers in the country, employers who hire one or two unauthorized workers are still likely to escape detection – unless they run for office or otherwise find themselves in the public spotlight.
The larger issue that remains unresolved is the overall status of 2.35 million California residents who don't have papers to live here legally, most of whom are deeply enmeshed in families, social relationships, and the economy of the state.