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ICE I-9 Audits: The Ultimate Game of Wack-a-Mole!

by Nancy-Jo Merritt

According to Wikepedia, the connotation of “Whac-a-mole” or “Whack-a-mole” in colloquial usage is that of a repetitious and futile task; each time the attacker is “whacked” or kicked off a surface, he only pops up again from another direction. The term has been used in the computer and networking industry to describe the phenomenon of fending off recurring spammers, vandals or miscreants. It is also used in the military to refer to opposing troops who keep re-appearing. Nuclear scientist Edwin Lyman compares the multiple simultaneous crises at Fukushima to a game of “whack-a-mole.”

In late 2009, ICE increased its use of I-9 work-place employment verification audits to “hold employers accountable for their hiring practices.” One of the early audited companies was the L.E. Cooke company, a fourth generation family-owned tree nursery in Visalia, California. The consequences of that September 2009 I-9 audit were described in a New York Times article this month. The ICE audit demonstrated that 26 of the company’s 44 workers did not have work authorization. L.E. Cooke was not fined, but had to terminate 26 skilled workers, many of whom had been with the company for years. The sudden loss was devastating. Replacement workers were hard to find, and the training process was lengthy. To add insult to injury, L.E. Cooke soon saw its former employees popping up at competitor nurseries.

I note here that ICE is managing its work-place enforcement duties in an orderly, professional manner. The wild raids of past years that caused chaos and destruction at the workplace, the arrests of parents with children waiting alone at school, are over. The cool efficiency of the I-9 audit process is a substantial improvement.

After auditing L.E. Cooke, ICE moved on, to other farms and other employers, and those companies terminated workers identified as unauthorized. Wack. The terminated workers from those employers moved on, to pop up again, usually in the same area, not unusually to a competitor. POP. Can ICE keep up? Wack-a-Mole! ICE moves on to audit another employer’s employment verification records, maybe in another city, another company, another state.

Between the pop-ups and wacks, what is missing?

The necessary machinery of American commerce is wacked, the slow-moving gears and flywheels of job creation in Mexico is not popping, the bright lights of big city USA are wacked, the rusty pistons of Congress are not popping. ICE can play Wack-a-Mole forever, but until Congress gets its mojo on and works on rational, comprehensive immigration reform which will put those moles to work paying taxes and putting dollars into Social Security, it’s Wack-a-Mole time for us all.

Under current DHS policies, arrests and removal are focused on violent criminals, repeat offenders and returned deportees. This is a sensible course; armed and dangerous criminals are properly the subject of focused enforcement. It is not possible to remove 10,000,000 undocumented workers at one time. Decisions must be made, and dangerous individuals and repeat offenders should be at the top of ICE’s list.

The rest of the story is ambiguous. The new focus is on employers and the employment verification requirement. No raids, no fleeing workers, no guns – instead it’s nice auditors in pressed shirts with clipboards. The end result is identification of unauthorized workers, but as most of these now-unemployed workers are not on the priority list for removal, they remain in the U.S., able to move on and maybe find employment elsewhere, keeping the economy moving. WACK! Oops. WACK!

Originaly published by Law Logix Group, Inc and Reprinted by Permission.

About The Author

Nancy-Jo Merritt is an attorney with Fennemore Craig and practices solely in the field of immigration and nationality law. She has over three decades of experience representing domestic and international companies with issues concerning foreign national employees and business immigration matters. She provides strategic counseling to clients on issue such as employment policies for a foreign national workforce, management of work authorization and the immigrant visa "green card" process, and development of compliance programs. Ms. Merritt has successfully challenged the federal government's interpretation of immigration law in a number of matters and writes and lectures frequently on developing issues in immigration law. Her extensive immigration experience includes in-depth knowledge of procedural developments at U.S. Citizenship and immigration Services, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement to help business clients comply with stringent federal responsibilities. She has a high level of expertise in conducting workplace audits of employment verification documentation and compliance with regulations governing work authorization of foreign national workers.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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