How to Survive the Audit that Almost Never Takes Place

By Dan Cadman on November 30, 2015

Law360 has recently published a series on how to defend against employer worksite actions by Immigration and Customs Enforcement (ICE).

The four articles are, of course, full of tips and tricks intended to aid lawyers in the defense of employers. But given the rarity of worksite enforcement, the question that immediately leaps to mind is: Why bother with the series at all? It seems a little like parents encouraging their children to believe in the bogeyman under the bed.

The articles (all behind a paywall) are: "Law360's Guide to Surviving an ICE I-9 Audit" on November 16; "Law360's ICE Survival Guide: Prepping For The Storm" on November 17; "Law360's ICE Survival Guide: Layoffs And Government Demands" on November 18; and "Law360's ICE Survival Guide: Facing Fines And OCAHO" on November 19.

("OCAHO", by the way, stands for Office of the Chief Administrative Hearing Officer, an administrative law judge within the Justice Department who hears fine cases against employers who have been charged with either hiring unauthorized workers on one hand, or discriminating against employees and job applicants on the other by requiring more documents than the law requires to establish work eligibility.)

Worksite enforcement has never been very vigorous even in the best of times, because it hasn't been particularly popular with either Democratic or Republican White Houses. But under the Obama administration, it has gone the way of virtually all immigration enforcement and allowed to atrophy to a pathetic, desiccated, bedridden shadow of itself.

The warning signs began as early as 2009 when the then ICE director of investigations issued a policy memorandum (almost certainly instigated from above) that forbade enforcement operations involving actually arresting illegal aliens at the workplace. This was done ostensibly in the name of preserving scarce resources so as to focus on egregious employers and more serious violations of the employer sanctions laws. Of course the memo was just a Potemkin Village of words designed to mask the administration's intent to eviscerate what little worksite enforcement had been going on.

A facade of audits continued for a while, although diminishing in both number and efficacy yearly — but between 2013 and 2014, according to government figures furnished to Law360, the number dropped by more than half, from an already abysmal 3,127 down to a mere 1,320. (Consider that there were, by comparison, 5,726,160 firms in the United States in 2012 according to the Census Bureau.) The timing of the radical decline cannot be accidental: The Gang of Eight "omnibus reform" bill of 2013, on which the administration had pinned its hopes for a broad-based amnesty benefiting millions, went into a tailspin and then crashed and burned by the end of 2014. So there was no longer any reason to maintain even the pretense of an interest in preserving jobs for lawful workers once that bill was dead.

Even employer audit cases brought forward to OCAHO are being settled for pennies on the dollar, as my colleague David North has noted (see here and here), and there is a marked proclivity these days to focus more on cases involving fines against employers for demanding too much paperwork of prospective employees rather than on employers who actually hire illegal aliens, thus dispossessing citizens and resident aliens of the jobs to which they are entitled.

All of which leads us back to my question: Why issue a series of articles about fine proceedings that almost assuredly will never take place under this administration, if your sin is hiring aliens with no permission to work?

Call me a skeptic, call me a cynic, but it just seems like one more empty storefront in the movie set that the Obama White House calls immigration enforcement.