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I-9 E-Verify Immigration Compliance


  1. OCAHO Reduces Penalties for Two Related Companies

    By: Bruce Buchanan, Sebelist Buchanan Law

    In a calendar year with few decisions, Office of Chief Administration Hearing Officer (OCAHO) issued its last one in U.S. v. Integrity Concrete/American Concrete, 13 OCAHO no. 1307 (2017). In this decision, OCAHO substantially reduced the penalties assessed against Integrity Concrete, Inc. and American Concrete, Inc., which essentially acted as joint employers. This decision only involves the amount of the penalties as Respondents agreed to the liability.

    Factual Scenario for Integity

    Integrity, located in San Diego, CA, was served with a Notice of Inspection (NOI) in January 2015. Thereafter, ICE served Notice of Suspect Documents on Integrity listing eight employees whose I-9 forms could not be verified as authorized to work. Integrity responded none of the eight employees were employed anymore.

    About seven months later, Integrity was served with a Notice of Intent to Fine (NIF), which charged the company with the failing to timely prepare I-9 forms for five employees, failing to ensure that three employees properly completed Section 1 of their I-9 forms, and failing to properly complete Section 2 or 3 of the I-9 forms for 16 employees. ICE assessed a fine of $24,684 based upon a baseline penalty of $935 and 5% enhancement for lack of good faith and seriousness of the violations.

    In Integrity’s answer, it challenged the penalties asserting it was a small employer, numbering 28 employees, which should account for a 5% statutory reduction in the penalty, bad faith should not have been found, and the penalties assessed would place an undue hardship on the company.

    Factual Scenario for American

    American, also located in San Diego, CA, was served with a Notice of Inspection (NOI) in January 2015. Later, American was also served with a Notice of Suspect Documents listing four employees whose I-9 forms could not be verified as authorized to work. American responded none of these employees were employed at its company. ICE assessed a fine of $24,684 based upon a baseline penalty of $935 and a 5% enhancement for lack of good faith and seriousness of the violations.

    ICE also served a separate NIF on American alleging it failed to timely prepare I-9 forms for 10 employees. ICE proposed a fine of $5,390 based on a baseline penalty of $440 plus 5% enhancements for lack of good faith, seriousness of the violations, and employment of three undocumented workers. American filed an Answer asserting it should have received 5% mitigation for each of these factors: small size of its workforce (48 employees), good faith, and the non-statutory factor of leniency toward small businesses.

    OCAHO’s Decision

    The first factor discussed was whether Integrity and American should receive 5% mitigation for being a small employer. ICE asserted the fact that both employers had small workforces, 48 and 28 employees, was inappropriate for determining whether they were small employers. ICE argued it should focus on gross sales and gross assets. The Administrative Law Judge (ALJ) for OCAHO disagreed and applied appropriate caselaw to find both to meet the definition of small employers; thus, they were entitled to the statutory 5% mitigating factor.

    Next the ALJ focused on whether Integrity and/or American should be assessed 5% enhancement for bad faith or 5% mitigation for good faith. ICE asserted three reasons for a finding of bad faith: Integrity backdated one I-9 form; both companies did not complete I-9 forms for some employees until after the NOIs issued; and their failure to present evidence that they utilize E-Verify.

    Although backdating alone is insufficient to support a finding of bad faith, the ALJ found several factors supported a finding of bad faith. However, the ALJ noted the use or non-use of E-Verify is not a factor which should be reviewed in determining good faith/bad faith.

    Concerning the employment of undocumented workers as an enhancement factor, the ALJ stated ICE failed to provide any evidence of their undocumented status. Rather, their enhancement was based on inclusion in the Notice of Suspect Documents. As the ALJ correctly pointed out, an allegation of undocumented status, which is essentially what placement on a Notice of Suspect Documents means, is not sufficient to prove undocumented status. Thus, no enhancement was added for this factor.

    Another issue involving Integrity was whether it established an inability to pay/hardship. The ALJ did not find such, despite a loss of over $600,000, because Integrity paid approximately $500,000 in salaries and benefits – much of which was paid to its shareholders.

    In determining the amount of the penalties, the ALJ was disturbed by the fact that $935 was the baseline penalty for Integrity while only $440 was the baseline penalty for American. Although the ALJ correctly noted the difference in the percentage of errors on the I-9 forms was the basis of the different baseline penalty, he found the companies should be assessed at approximately the same dollar amount and compliance rate alone is insufficient to justify wide variation. Thus, the ALJ assessed $400 baseline penalty for substantive paperwork violations and $500 for failure to prepare I-9 forms.

    Based on this analysis, Integrity was found to have committed five violations for failing to prepare and/or present I-9 forms. Each of these violations will be assessed at $500, with the enhancement factor for seriousness of the violations and mitigation factor for the small size of the business cancelling each other. Accordingly, Integrity is liable for $2,525 under Count I. Under Counts II and III, Integrity was liable for substantive violations for failure to properly complete three I-9 forms and 19 substantive paperwork violations, all assessed at $400 each. Therefore, Integrity is liable for $11,325.

    American was found liable for 11 substantive violations for failing to prepare and/or present I-9 forms. Each of these violations will be assessed at $500, which includes the $500 base fine, with the enhancement factor for seriousness of the violations and mitigation factor for the small size of the business cancelling each other. Accordingly, American is assessed a total civil penalty of $5,500.


    OCAHO may have slowed down on adjudication of cases but they will be back to speed once they get their allotment of ALJs. In the meantime, now is a great time to conduct an internal I-9 audit under the supervision of an experienced immigration compliance attorney. To find out more about internal I-9 audits as well as other employer immigration compliance issues, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at
  2. ICE Continues its Inspections of California Employers

    By: Bruce Buchanan, Sebelist Buchanan Law

    As I have discussed in a recent blog entry (, Immigration and Customs Enforcement (ICE) is seemingly targeting California employers for inspections of their I-9 forms. In the past week, Bee Sweet Citrus in Fowler, California and about seven other Fresco area employers have received ICE visits for the purposes of subpoenaing their I-9 forms and other paperwork. In previous weeks, ICE targeted 77 employers in the San Francisco Bay Area and Sacramento.

    ICE spokesman, James Schwab, said the work site enforcement actions are nothing new and remain a priority of Homeland Security Investigations, a part of ICE, to ensure employers are in compliance with the law. However, this statement seems contradictory to ICE acting Director Homan’s statement that ICE was increasing their inspections by 400 to 500%.

    As many of my readers know, once an employer receives a Notice of Inspection/subpoena, it has 3 days to produce its I-9 forms to ICE for their inspection. In the inspection (also referred as an audit), ICE reviews the I-9 forms to determine whether all employees are legally authorized to work and whether there are substantive paperwork violations on the I-9 forms. If undocumented workers are employed, ICE may return to the employer and detain the undocumented workers. Alternatively, ICE may issue a Notice of Suspect Documents to the employer stating which employees do not have valid work authorization. If after the employer gives its employees an opportunity to provide valid documentation (“newer and better documentation”), the employees fail to provide such, the employer must discharge those employees. If the employer is knowingly employing undocumented workers, it faces penalties of up to $4473 per employee for first offenses. Additionally, substantive paperwork violations on I-9 forms are penalized at $224 to $2236 per I-9 form.

    At Bee Sweet Citrus, at least 40 workers quit after ICE delivered the NOI/subpoena, seemingly because they knew they were undocumented and were afraid of being detained by ICE. Jim Marderosion, president of Bee Sweet Citrus, said his workers were aware the ICE agents were coming and that was enough for some employees not to return to work. It’s unclear how the workers knew of the inspection as normally ICE does not provide advance notice.

    Marderosian said “One woman who has worked for me for nearly 20 years came up to me, gave me a hug and told me that she had to leave; she couldn’t take a chance.” Marderosian also stated “What good does it do to make these workers lose their jobs. They will have to find work somewhere. Some way or another they are going to have to feed their families.” This story was first reported by Robert Rodriguez of The Tribune,

    To learn more about employer immigration compliance and steps you can take to prevent I-9 violations and hiring undocumented workers, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, which is available at
  3. OCAHO Raises Doubts on ICE’s Arguments

    By Bruce Buchanan, Sebelist Buchanan Law PLLC
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    In U.S. v. SKZ Harvesting, Inc., 11 OCAHO no.1266 (Feb. 4, 2016), the Office of Chief Administrative Hearing Officer (OCAHO) faced a number of issues concerning what is knowledge of unauthorized status of workers, whether the loss of many I-9 forms is a viable defense, whether Immigration and Customs Enforcement’s (ICE) possession of I-9 forms from a previous Notice of Inspection is a viable defense, and whether an employer has to complete new I-9 forms for seasonal workers.

    ICE had previously issued a Notice of Inspection (NOI) to SKZ, a seasonal cherry harvesting business, in 2010 and as a result of the investigation, ICE issued a Notice of Suspect Documents (NSD) involving 71 employees. At the conclusion of the inspection, ICE issued SKZ a written warning.

    In 2013, ICE returned with another NOI and issued another NSD with 62 employees, including five workers whose names had appeared on the 2010 NSD. Additionally, ICE served SKZ with a Notice of Intent to Fine (NIF) seeking $74,587 in penalties.

    Concerning the five employees who appeared on each of the NSDs, SKD did not respond to the first NSD nor contest their inclusion on the list. Unbeknownst to ICE, those five employees were no longer working for SKZ when the first NSD was served. Furthermore, during employment at a later date, some of the employees in question presented different documents reflecting their authorized status, such as permanent resident cards, although the green cards showed had been issued before the previous green cards presented. Three of the individuals used the same Social Security numbers as used in 2010.

    SKZ admits it failed to present I-9 forms for any of the employees. SKZ asserts four of the individuals never worked for SKZ and the remaining I-9 forms could not be presented because the owner had inadvertently destroyed a box containing I-9 forms. Furthermore, ICE had some of the I-9 forms from the 2010 NOI. As for proof that the four individuals never worked, SKZ had no payroll records to demonstrate they had worked and been paid.
    Besides these arguments, SKZ asserted the proposed penalties are too drastic and will cripple their business. Furthermore, SKZ argued that a number of mitigating factors should be utilized to reduce the penalties. First, it is a small business and thus should be eligible for 5% mitigation. Second, SKZ asserts the totality of the circumstances demonstrated the company’s good faith. OCAHO agreed with both of these arguments.

    ICE argues for a 5% aggravating factor for a history of previous violations. However, OCAHO held a “prior Written Notice is not sufficient to show there was a previous violation” because “absent a formal judgement or an admission, no previous violation has been shown.”

    As for the alleged employment of unauthorized workers, ICE asserted certain individuals were not in databases utilized by ICE. However, OCAHO chastised ICE for arguing over social security mistakes because many arise for a variety of reasons and the appearance of a name on a NSD is insufficient to establish a worker’s unauthorized status. Thus, OCAHO found SKZ did not knowingly employ any unauthorized workers.

    Overall, OCAHO said the penalties should be adjusted to the midrange of permissible penalties and total penalties assessed were $29,600.
  4. ICE Inspection May Result in Terminations at Wash. Company; by Bruce Buchanan

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    U.S. Immigration and Customs Enforcement (ICE) recently inspected the I-9 forms of employees at Crunch Pak, an apple packaging company Cashmere, Washington with about 900 employees. ICE notified the company that hundreds of its workers have suspect documents and is demanding Crunch Pak produce documents showing its workers are legally authorized to work in the United States.

    In response to ICE’s findings, Crunch Pak spokesperson Amy Philpott stated, “What the company wants is for every employee to have the chance to correct their information or amend their paperwork.” Crunch Pak has since notified its employees to produce valid documents or face termination on May 19, 2014.

    The inspection of the Crunch Pak began in August 2013 when ICE served the company with a Notice of Inspection (NOI) requiring it to produce the I-9 forms of current and former employees along with a number of other payroll-related documents. In 2013, there were over 3,100 NOIs issued to employers throughout the United States. This is an increase of over 600% since 2008.

    As the number of NOIs has increased, so have the penalties paid by companies. In 2012, companies paid over $12.4 million in penalties for I-9 violations. In addition to fines, some company owners and managers have been criminally charged for knowingly hiring undocumented workers and/or harboring undocumented workers.
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