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I-9 E-Verify Immigration Compliance

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  1. Court Upholds OCAHO’s Penalty Finding

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Second Circuit Court of Appeals in Buffalo Transportation, Inc. v. USA upheld the penalties assessed by the Office of Chief Administrative Hearing Officer (OCAHO). Previously, OCAHO found Buffalo Transportation, Inc. (BTI) violated the Immigration Control and Reform Act by committing 135 substantive violations and assessed a civil penalty of $75,600.

    In its appeal, BTI contended 54 of the 135 violations were technical, rather than substantive, violations. For these 54 violations to be dismissed, BTI would have to be successful in their appeal and Immigration and Customs Enforcement (ICE) would have to not give BTI 10 days to correct the technical errors.

    The issue before the Court was whether OCAHO correctly determined that the 54 Form I-9s presented to ICE were not prepared within three days of the employees’ hiring date. Under the applicable regulation, an employer must prepare an I-9 form within three days of hire and failure to do so is considered a substantive violation.

    In determining this issue, the Court applied deference to OCAHO’s interpretations of the relevant regulations regarding the timing of when I-9 forms must be prepared. After applying the appropriate deference, the Court stated OCAHO correctly determined there was no evidence that any of the I-9 forms were timely prepared; rather, the 54 Form I-9s were prepared after ICE delivered its Notice of Inspection to BTI.

    BTI also asserted it should have been given a warning notice rather than a penalty. However, the Court noted it is within the discretion of ICE to do so and in this case, ICE declined to use their discretion to issue a warning notice. Thus, the Court could not order ICE to issue a warning notice.

    Additionally, BTI argued it kept copies of the employees’ documents reflecting work authorization which shows substantial compliance. The Court noted the regulations clearly do not allow retention of these documents to relieve the employer from completing section 2 of the I-9 forms.

    Finally, BTI argued the amount of the penalties was arbitrary. The Court noted OCAHO considered the statutory factors and ability to pay and reduced the penalties accordingly. The Court concluded OCAHO made an “allowable judgement” in determining the penalties and it would not and could not substitute its judgement.

    This decision is consistent with most other court of appeals’ decision which uphold OCAHO’s findings and the assessment of the penalties.
  2. OCAHO Reduces Company’s Penalty by 60 Percent; by Bruce Buchanan, Siskind Susser

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    OCAHO is on a roll this year as it issued its third decision in just the first six weeks of 2014. This time, it reduced a home healthcare company's penalty by about 60%.

    I-9 Form Violations

    In U.S. v. New Outlook Homecare, LLC, 10 OCAHO no. 1210 (2013), ICE sought a penalty of over $21,500 for substantive violations – failing to ensure completion of Section 1 and failing to property complete Section 2 or 3 of the I-9 forms. The company asserted the errors were “minor clerical errors”; however, OCAHO disagreed and found substantive violations.

    Calculation of Penalties and Company’s Arguments

    ICE calculated the penalties with a baseline penalty of $935 per violation because over 50% of the I-9 forms had substantive errors. ICE mitigated the penalty by 5% due to the small size of the business but enhanced the penalty by 5% based on the seriousness of the violations.

    The company argued the penalty was “unreasonable and excessive.” It argued for a penalty of $150 per violation because ICE did not give the company sufficient credit for following the law and not hiring unauthorized workers. Furthermore it asserted it possessed good faith.

    OCAHO Decision

    Although OCAHO found the violations to be serious, it determined the penalty was near the maximum allowed of $1100 per violation and that level of penalty should be reserved for “more egregious violations.” OCAHO did not find the violations to be egregious in this case. Finally, it noted that small companies should be given leniency under the Small Business Regulatory Enforcement Fairness Act. Thus, OCAHO reduced the company’s penalty to $9450.

    The reduction in the penalty of about 60% is greater than OCAHO’s average reduction of 46.5% and 45% in 2012 and 2013, respectively.
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