Employing undocumented workers in Texas is illegal, but rarely enforced

AUSTIN (KXAN) – May 12, 2008, was a life-changing day for Postville, Iowa, and its 2,000 residents in the northeast corner of the state. Helicopters circled overhead as a swarm of federal agents raided the city’s largest employer – a kosher meatpacking plant called Agriprocessors.

Immigration authorities hauled off nearly 400 suspected unauthorized workers. The facility owner, Sholom Rubashkin of New York City, would be arrested and charged with 70 counts of harboring undocumented aliens for profit – a federal crime targeting him for employing undocumented immigrants.

The Agriprocessors raid was one of the biggest in the last 25 years. It followed a nationwide enforcement action two years earlier that nabbed over 1,200 undocumented employees working for IFCO, a Texas-based pallet company. Five management-level IFCO employees in Texas were indicted and convicted for employing undocumented workers.

Other Texas business owners have faced indictments for employing undocumented immigrants as well: four operators of a Houston tortilla maker in 2017, a restaurant owner in Big Spring in 2019 and two bakery owners in the Rio Grande Valley this March, among others.

“This is a unique, different case from what we usually see,” said attorney Sergio Villareal, who represents one of the bakery’s owners.

But beyond the sporadic headlines and splashy workplace raids, a KXAN investigation found the federal government’s use of immigration enforcement law focuses far more on migrants than the bosses who hire and pay them.

Furthermore, strict enforcement of the laws could have a large-scale negative impact on Texas’ economy, where some of the major business sectors like agriculture, hospitality and construction have a significant and entrenched undocumented workforce, according to government estimates and immigration experts.

As immigration scholar Muzaffar Chishti told KXAN: laws banning employment of undocumented immigrants have always been the “underprivileged cousin of the enforcement regime.”

Theory versus practice

Chishti, a senior fellow at the Migration Policy Institute, “cut his teeth” working on the 1986 Immigration Reform and Control Act that created employer sanctions. The architect of that Act, U.S. Sen. Alan Simpson, a Wyoming Republican, believed the primary driver of illegal immigration was employment, he said.

“The job is the magnet for coming to the United States. If you demagnetize the magnet, people would just stop coming,” Chishti said. “Theoretically, incredibly compelling argument. In practicality, it was really a bad start right from the beginning.”

The law, which is enforced by the Department of Homeland Security and Immigration and Custom Enforcement, or ICE, says it is illegal for an employer to “knowingly” hire, recruit or employ an “alien” who is unauthorized for employment.

The wording of the law was flawed from the outset, according to Chishti, in part because businesses strongly opposed it.

Meanwhile, on the other side of the political spectrum, those backing migrant workers and trying to bring them out of the shadows were also opposed to enforcement that criminalizes otherwise law-abiding workers who take low-paying jobs, they said, most citizens aren’t interested in pursuing.

Federal authorities have an array of punishments and penalties they can levy against workers, businesses and employers. They can face arrest, indictment and criminal fines. There are also civil fines, monetary penalties, forfeitures and debarment, which is exclusion from receiving federal funds or contracts for a period, according to congressional records.

Of all those possible punishments, data shows, and experts agree, employers are rarely targeted.

Enforcement has ebbed and flowed with each federal administration.

Broadly, Democratic administrations have relied more on I-9 audits and administrative fines to enforce employment verifications. Republicans have prioritized worksite enforcement operations with worker arrests, according to the Migration Policy Institute, a Washington D.C. based nonpartisan and nonprofit think tank that “seeks to improve immigration and integration policies through authoritative research and analysis,” according to its website.

I-9 forms are federal documents that prove an employee’s authorization to work.

“In both cases, the numbers of employers who are criminally prosecuted for knowingly hiring unauthorized workers is quite low,” according to the Institute.

Back in 2015, federal enforcement was focused on cases involving critical infrastructure and “employers who commit ‘egregious’ violations of criminal statutes and engage in worker exploitation,” according to perhaps the last significant congressional study on worksite enforcement of unauthorized workers.

Fiscal year data from 2017 and 2018 – during President Donald Trump’s first term – show an average of 72 “management” indictments per year, according to HSI reports. From 2021 through 2024 under the Biden administration, there were an average of 21 of those indictments annually, according to U.S. Department of Homeland Security Investigations annual reports.

Overall, there have been only 84 management-level indictments nationwide among the 3,115 total cases initiated, according to the last four years of ICE data on labor exploitation.

Trump made it clear during his most recent campaign, and in his first months since reassuming the presidency, that deporting unauthorized immigrants is a top priority. As of late April – and 100 days into Trump’s second term – it is not clear from federal data how much of the effort will focus on employers, rather than employees. 

Critics of the efforts have pointed to the positive impact workers have on the economy, and the potentially negative effect of mass deportations if swaths of migrant labor are cut off.

Undocumented immigrants entrenched in Texas’ workforce

“We don’t see CEOs round up,” said State Rep. Armando Walle, D-Houston. “You see workers being round up now.”

Walle, the son of a Mexican immigrant, spoke to KXAN outside the Capitol in late March at a Workers Defense Rally against what was described as “extreme, anti-worker legislation.” In response, Walle introduced a bill this legislative session to require shade, rest and water breaks to prevent heat-related injuries and deaths. 

He worries about mass deportations and harsh conditions for Texas’ skilled laborers, several of whom told KXAN they often work for little or sometimes no pay.

“If we would lose that immigrant labor … it would cause a cascading, devastating impact, negative impact on the Texas economy,” Walle said.

Employers “would not be able to earn those high incomes without the sweat and the tears and the blood and sometimes the lives, particularly in construction, of the folks that are working on a daily basis,” Walle noted.

Not all state leaders agree.

Texas Commissioner of Agriculture Sid Miller said he doesn’t foresee much economic damage from a spike in immigration enforcement – at least not for farming, which his office oversees.

Miller spoke with KXAN from behind his office desk adorned with multiple pictures of Trump, cowboy sculptures and a decal reading “pray, it’s not illegal yet.”  

Texas farming doesn’t depend much on migrant and unauthorized labor anymore, Miller said. The industry has evolved from the old days of widespread hand harvesting.

He acknowledged the last state-level study on the subject was 20 years ago, and “we don’t have data.”

“I’m just using cowboy logic,” Miller said

“We're agriculture 3.0,” he said. “We have cows that milk their selves by robotic milkers. We have autonomous tractors that drive their selves.”

While Miller doubted there’s a significant number of unauthorized workers in Texas agriculture to deport, his remarks underscored how prevalent the labor has been in the state.

When KXAN asked Miller if he had ever employed an unauthorized worker in the past, the statewide elected official and eighth-generation Texas farmer and rancher said he had.

“I have, years and years ago, yes,” Miller told KXAN, adding that he “couldn’t hire anyone to get the crop in.”

Miller soon added context: he did what was required in the law. He had I-9 forms and the proper paperwork for his workers. Whether or not all his workers’ documents were legitimate, he couldn’t say.

“I did due diligence. I did my part,” Miller told KXAN. “I'm covered, so I never knowingly hired one.”

Miller’s experience underscores what Chishti – with the Migration Policy Institute – said about the federal government’s scant use of criminal sanctions against employers.

Chishti said a big reason employers aren’t targeted for hiring undocumented workers traces back to a word in the original law – “knowingly” – that provides significant cover for business operators. 

“The word ‘knowingly’ is, I like to say, a big gaping hole through which trucks have been driven since 1986,” Chishti said.

Employers aren’t treated as document experts. So long as they collect the required paperwork – even if it turns out to be counterfeited – they generally don’t face liability for hiring unauthorized workers, according to Chishti and the Migration Policy Institute’s 2018 report

KXAN’s own analysis also found employers are rarely targeted.

Few prosecutions

A KXAN analysis of federal court data, looking specifically at the crime of “unlawful employment of aliens,” a statute specifically targeting employers, found scant use of that law in border states.

Since 2000, KXAN found just 20 cases of that law being used to prosecute employers in the border states of Texas, New Mexico, Arizona and California. Some of those cases had multiple defendants.

Chishti said there’s a simple way to see how ineffective the law has been: just look at workforce data. 

Estimates for the number of undocumented immigrants in the country, and each state, vary between research organizations and the government. Regardless of the source and slight variations in numbers, the largest and most well-recognized think tanks and demographic research organizations all agree that the numbers have grown since 1986 when employer sanctions were enacted.

The Migration Policy Institute’s most recent estimates show the number of unauthorized immigrants hung around 11 million from 2010 through 2019, then began rising and reached nearly 14 million by 2023.

Chelsie Kramer, a Texas state organizer with the American Immigration Council, said her organization estimates Texas now has two million undocumented immigrants, who make up 7% of the state’s population and 9% of its workforce. 

Removing that many employees would immediately cause huge deficits across the board, she said. Kramer’s organization is a national nonprofit focused on helping people understand the impact of immigration and has challenged immigration policies in court.

The AIC estimates undocumented workers in Texas comprise about 25% of the construction industry, 17% of agriculture workers and 10% of manufacturing, according to Kramer.

“Any conservative Republican or liberal Democrat will understand that the numbers don't lie, that this is a big, important part to the Texas economy,” Kramer said.

With outdated immigration laws, there isn’t a legitimate pathway for these workers to “adjust their status,” which they want and so do many of their employers, Kramer said.

Texas’ state-level enforcement effort

The most widely used system to address unauthorized employment, E-Verify, is not federally mandated for states and has its own shortcomings, Chishti said. E-Verify is an online system that validates employment authorization by cross-referencing I-9 form information entered by employers with federal databases. It identifies fraudulent documents, but it doesn’t link valid documents to a specific person with, for example, facial recognition, he added.

Texas only requires E-Verify for state employees and contractors, according to Equifax.

Given the myriad shortfalls in the country’s immigration system, some states, including Texas, have sought to create avenues to enforce the law themselves.

One of the few immigration enforcement mechanisms available to states is stripping a company’s state-issued business license if they’ve knowingly hired unauthorized workers. Arizona passed such a law in 2007, and the U.S. Supreme Court upheld it in 2011.

Back in 2009, then State Sen. Dan Patrick, R-Houston, took a crack at making Texas’ own version with Senate Bill 357. The measure would have given the state authority to strip a business’ license if it knowingly hired unauthorized workers, paid them cash and skirted paying state taxes and unemployment insurance.

Patrick painted it as a pro-business measure that would level the playing field and eliminate bad actors who use cheap unauthorized labor to undercut legitimate enterprises.

“The purpose of this bill is not to go after businesses who try to play by the rules, even though they may have illegal aliens working for them,” Patrick told the Senate Transportation and Homeland Security Committee in 2009. “If they are collecting the proper I-9s, looking for identification, getting Social Security cards, it is not their fault. They are doing their job.”

Patrick also struck a compassionate tone in his remarks.

“I will not sleep at night knowing that some employer in this state, because we refuse to act, is allowed to treat someone like a slave in the year 2009 in the United States of America, and this committee should not stand for that either,” Patrick said.

Some heavy hitters in Texas’ business community weren’t having it.

Lonnie “Bo” Pilgrim, owner and founder of America’s largest poultry producer at the time, Pilgrim’s Pride, sat before the committee and said the country’s immigration problem was 40 years in the making, and it was the federal government’s job, not Texas’, to fix it.

Pilgrim brought his company’s human resources executive to the meeting, and she went on to explain how problematic the bill would be, given the difficulty in verifying employee documents.

Bill Hammond, president of the Texas Association of Business at the time, also testified in opposition to the bill. Congress needed to take the lead on the issue, he said, and Texas should stick to its existing laws for handling businesses that pay cash and avoid taxes.

The committee killed the bill two weeks later on a 4-4 vote.

Patrick, now lieutenant governor, didn’t respond to KXAN’s interview requests asking why Texas hasn’t revisited the proposal in the years since. 

State study finds net benefits

In 2006, three years prior to Patrick’s bill, the Texas Comptroller released its first – and last – comprehensive study on unauthorized workers’ impact on the state finances.

Carole Keeton Strayhorn, the comptroller at the time, estimated undocumented immigrants in Texas generated “more taxes and other revenue than the state spends on them.”

Back then, 31% of undocumented immigrants worked in the service industry, followed by 19% in construction. Nearly a quarter of all farming workers in the state were undocumented, the study found.

Eliminating 1.4 million undocumented immigrants from the state population at that time would drop gross state product by $17.7 billion, or 2.1%. Personal income and employment would decline over 2%, the report found.

Overall, the report predicted Texas would not fully recover from the loss of labor. Over 20 years, production costs would rise, affecting the state’s competitiveness in the international marketplace and shrinking the economy.

The issue hasn’t been studied by the state government since.

In April, KXAN spoke with two workers – a husband and wife – who shared their concerns and the plight they say many face in Texas.

‘We don’t do nothing…only…work’

Ivonne and Mario said they came to Austin 25 years ago to escape violence, find work, and build a better life. Today, she’s a cleaner and he works in construction.

“My kids don’t even know Mexico,” Ivonne said. “So, we feel this is our country.”

KXAN met this husband and wife through the Workers Defense Project. Despite the potential consequences, they wanted us to know their story – low pay and taking whatever jobs are available on a given day – is a common struggle. Worried about deportations, they asked us to only use their first names and would not share their immigration status.

“A lot of people – they have the fear,” she said. “Because they are going to remove the stability we already have.”

For Mario, his fear is leaving his family in a financial bind.

If undocumented workers disappeared, who would clean your buildings and housings, Ivonne asked. Construction companies would “go broke,” if they lost their hard working migrant employees, said Mario.

“We don’t understand why [there] is a lot of persecution to us.” Ivonne said. “Because we don’t happen to do anything wrong. We don’t do nothing, only to work.”

‘They’re going to come back as legal workers’

Agriculture Commissioner Miller doesn’t foresee much economic damage from a spike in immigration enforcement. 

In his interview with KXAN, he noted Trump is focused on “bad guys” and “gang members.” Furthermore, the president recently clarified – and apparently softened – his position on how certain unauthorized workers would be dealt with.

At a cabinet meeting in April, Trump said his administration wanted to work with undocumented workers who leave the country “in a nice way,” NBC reported.

“We have to take care of our farmers, the hotels and, you know, the various places where they tend to, where they tend to need people,” Trump said at the meeting. 

The broad comments are part of the president’s plan to strengthen the farm workforce and improve H-2A and H-2B visa programs, according to an administration official. It reflects a more business-friendly approach to deportations, and softer rhetoric toward unauthorized workers who underpin major American industries.

Trump didn’t touch on enforcing the law against business owners, though he showed leniency on one business owner in the past.

In the case of Sholom Rubashkin – the owner of Agriprocessors arrested and indicted in the 2008 Iowa raid – the federal government ultimately dropped all 70 of the charges related to employing unauthorized workers. In 2010, he was convicted and sentenced to 27 years in prison on dozens of financial crimes, according to a judgment.

That was too harsh, Trump decided in 2017.

In a move with bipartisan support, Trump commuted Rubashkin’s sentence – after eight years served – freeing from prison the former meatpacking executive, and employer of hundreds of unauthorized workers.

KXAN Digital Data Reporter Christopher Adams, Graphic Artist Wendy Gonzalez, Director of Investigations & Innovation Josh Hinkle, Investigative Photojournalist Chris Nelson, Digital Special Projects Developer Robert Sims, Digital Director Kate Winkle and WFLA Bilingual Digital Producer José Acevedo Negrón contributed to this report.