Slim Immigration Enforcement Resources Leave Employers Hanging

Nov. 27, 2018, 11:13 AM

Immigration and Customs Enforcement completed 1,360 audits of companies’ I-9 employment verification forms in fiscal year 2017.

In 2018, they are on track to launch 8,500.

But an ICE mandate to quadruple work-site enforcement could all be just for show, as so far there’s been no corresponding increase in the manpower and funding needed to complete workplace audits and manage legal challenges. As of July, ICE had already sent 5,200 audit notices.

Without any change, what’s already a monthslong process to impose fines on employers that violate the law could extend even longer if backlogs develop. That could give thousands of employers the ability to put off sanctions for months or years at a time. But for other companies, including some who unknowingly hired unauthorized immigrants, it could mean months or years of uncertainty as the potential high cost of fines hangs over their heads.

‘Explosion’ of Inspections

Former ICE Director Thomas Homan announced the planned ramp-up in employment verification audits shortly after the agency concluded FY 2017 with 1,360 audits of companies’ verification forms, known as I-9s. The forms are meant to ensure that employers don’t hire unauthorized immigrants.

“I really don’t think they have enough auditors to handle the explosion of I-9 inspections” this year, immigration attorney Bruce Buchanan of Sebelist Buchanan Law in Nashville, Tenn., told Bloomberg Law.

Buchanan said a client of his received an audit notice Jan. 19. The agency didn’t send a notice that it intended to fine the company for violations until July 10, he said.

I-9 audits don’t “necessarily require auditors” and can be done by ICE agents, Dan Cadman, a fellow with the Center for Immigration Studies, told Bloomberg Law. But “there’s always going to be a huge, huge resource mismatch” between “government resources and the number of businesses in the U.S.,” he said. The Center for Immigration Studies is a think tank that favors lower immigration numbers.

“In light of the increased focus on worksite enforcement,” ICE is “exploring options to expand capacity, to include on-boarding more than 60 contract auditors, as well as working on IT solutions that will help streamline the audit process,” agency spokeswoman Danielle Bennett told Bloomberg Law in an email.

DOJ Can’t Keep Up With Challenges

It’s not just ICE staffing that’s an issue.

The Justice Department’s Office of the Chief Administrative Hearing Officer, which hears employers’ challenges to fines ICE imposes for I-9 violations, currently doesn’t have a permanent administrative law judge to hear those challenges. The position has been empty since May 2017.

Historically, there have been one or two ALJs within the office.

OCAHO released one I-9 decision in FY 2018. During FY 2013, the peak of the Obama administration’s I-9 audits, the office issued 33.

That’s a “huge gap,” especially considering the recent efforts at hiring immigration judges elsewhere in the agency, said Cadman, a former official with the Immigration and Naturalization Service. “They really need to get on the ball with that.”

It’s the “pig in the python effect,” Cadman said. An extra “5,000 cases may be the pig that gets shoved” into OCAHO “that it’s forced to digest all at once,” he said.

A lot of cases never reach the hearing stage, but an OCAHO backlog could provide a disincentive to settle because it extends the time an employer won’t have to pay anything at all, Cadman said.

On the other hand, Buchanan said, other employers are “really anxious to get on with their business” and want finality rather than continued uncertainty as to whether they’re liable for all I-9 errors and how much of a fine they’ll have to pay.

Three judges from other federal agencies currently are hearing I-9 cases, according to Kathryn Mattingly, spokeswoman for the Executive Office for Immigration Review. One permanent ALJ position at the office’s headquarters is expected to be filled “soon,” she said in an email to Bloomberg Law. The agency also has posted openings for another ALJ at headquarters and three in field offices, she said.

More Staffing Unlikely

The shortage of enforcement workers isn’t likely to be solved any time soon, leaving employers with continued uncertainty.

Funding to expand ICE is even less likely to materialize in 2019 with Democrats controlling the House, especially with some in the party calling for an end to the agency altogether.

ICE currently employs some 20,000 workers at 400 locations within the U.S. and in 46 countries abroad, according to the agency’s website. A January 2017 executive order on interior immigration enforcement called for the agency to add 10,000 additional agents to its ranks.

“That’s good news if you’re an operator,” Acting ICE Director Ronald Vitiello said at a recent conference. “The bad news is it’s not been funded,” he said.

The lack of resources is compounded by the imperfect marriage of customs and immigration enforcement within ICE’s Homeland Security Investigations, the directorate that handles work-site enforcement, Cadman said.

“The large percentage of people who are special agents in charge, resident agents in charge, assistant special agents in charge, and group supervisors” are former customs officers who primarily handled incoming goods rather than immigration, he said. “A very large number of them hold their nose at the thought of doing anything immigration-related,” he said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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