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I-9 E-Verify Immigration Compliance

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  1. OCAHO Finds Employees’ TWIC Cards Grounds to Reduce Employer’s Penalties

    By Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

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    A trucking company, Ideal Transportation, significantly reduced its penalties for I-9 violations due to its truck drivers possessing “Transportation Worker Identification Credential” (TWIC) cards, which were issued by the Transportations Security Administration (TSA). See U.S. v. Ideal Transportation Co., Inc., 12 OCAHO no. 1290 (2016).

    Ideal Transportation operates a small intermodal carrier transporting international ocean containers between several ports in the northeast. Its drivers must have TWIC cards because they have unescorted access to secure areas of port facilities and certain vessels at the ports. In order to obtain a TWIC card, an individual must provide biometrics and pass a “security threat assessment” conducted by TSA. Furthermore, one must be a U.S. Citizen or be lawfully in the U.S. In this case, all of Ideal’s truck drivers possessed TWIC cards.

    After Ideal was served with a Notice of Inspection, it reviewed its employees’ I-9 forms and determined they were “soiled, torn and illegible and the information was outdated”; thus, all new I-9 forms were completed. Furthermore, Ideal shredded the existing “soiled” I-9 forms.

    Based upon this background, Immigration and Customs Enforcement (ICE) found 12 violations because the I-9 forms were not timely completed. ICE proposed a penalty of $11,220 based upon a baseline penalty of $935 per violation. In its filing with the Office of Chief Administrative Hearing Officer (OCAHO), Ideal asserted its drivers had TWIC cards, were U.S. citizens and had completed I-9 forms when initially hired. Thus, it asserted it did not violate the law.

    OCAHO found Ideal’s argument, that the timely prepared I-9 forms and subsequent destruction because they were damaged, was not a valid defense to liability. Although OCAHO recognizes “impossibility” as an affirmative defense to the failure to present I-9 forms when the I-9 forms were unavailable through no fault of the employer, those facts were not presented in this case. Rather, the destruction of the original I-9 forms was attributable to the company’s own actions. Thus, OCAHO found Ideal liable for 12 Form I-9 violations.

    However, OCAHO stated the TWIC cards demonstrated the employees were authorized to work, which undercuts ICE’s argument that Ideal was “at high risk to hire employees that may not be authorized to work.” Furthermore, the TWIC cards demonstrated the lack of seriousness of the violations as well as the company’s good faith.

    OCAHO also found due to Ideal’s very small size, the general public policy of leniency to small business entities should be considered in determining the appropriate penalty. Based upon these factors, OCAHO determined a penalty of $2700 was appropriate.
    Although Ideal greatly reduced its penalty, the lesson to be learned here is not to destroy the original I-9 forms even if you determine the I-9 forms need to be re-done. Instead, attach the original I-9 forms to the new I-9 forms even if they are soiled or torn.
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