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I-9 E-Verify Immigration Compliance


  1. Pool Company Owner Jailed, Fined $78K for Hiring Unauthorized Workers

    By Bruce Buchanan, Siskind Susser

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    On December 29, 2014, the owner of a Washington, D.C. area pool service company was sentenced to prison for knowingly hiring unauthorized workers. In addition to prison time, he was ordered to pay a fine of $36,000, forfeit $42,262, perform 80 hours of community service, and serve 60 days of home confinement along with 18 months of probation.

    According to his plea agreement with the U.S. Attorney’s office, Raymond Vincent was the owner of RSV Pools which provided lifeguards and pool maintenance services in the Washington, D.C. metro area. From January 2009 through June 2013, the company hired at least 12 unauthorized workers. Vincent approved the employment of each worker and knew that at least three of them were not legally authorized to work. Another nine employees were legally authorized for employment when they were hired, but their work status expired and they continued working with RSV Pools with Vincent’s knowledge.

    Vincent also approved the payment of four unauthorized workers in cash “so that they did not appear on RSV’s books”, and permitted at least three of the unauthorized workers to rent a company apartment in 2012 and 2013, further profiting from their rent payments.

    In a separate but related case, a former employee of RSV Pools, Milen Radomirski, was sentenced in July 2014 to two years in prison for visa fraud and ordered to forfeit $100,000. Radomirski worked for the company from 2003 to 2013, recruiting international workers for RSV Pools to sponsor to work in the U.S. on H-2B visas and other temporary visas. Radomirski submitted applications for approximately 789 H-2B visas from 2006 to 2011, and fraudulently obtained over 100 visas. Radomirski admitted that he charged visa beneficiaries money in exchange for including them on petitions for H-2B visas, and knew that many of the visa beneficiaries would only work for RSV Pools a short time, or not at all, before working for other companies.

    As part of Vincent’s plea agreement, neither he nor RSV Pools can apply for visas or work permits for any foreign workers for a period of three years.

    A copy of the press release from ICE HSI can be found here.
  2. DOJ Upholds ICE Fines Despite 5-year Statute of Limitations

    By Bruce Buchanan, Siskind Susser

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    In one of its final decisions of 2014, Office of Chief Administrative Hearing Officer (OCAHO) held Immigration & Customs Enforcement (ICE) filed its complaint against Leed Construction beyond the five-year statute of limitations as it related to knowingly employing undocumented workers. However, OCAHO found the statute of limitations did not apply to substantive I-9 form errors because they were “continuing” violations.

    ICE filed its Complaint on September 30, 2013, alleging that Leed Construction hired 21 individuals knowing they were aliens unauthorized for employment in the United States, and failed to ensure that 14 other employees properly completed their I-9s.

    The issue was whether Leed Construction's alleged violations occurred before or after September 30, 2008. Pursuant to 28 U.S.C. § 2462, ICE’s claims pertaining to activities that occurred prior to September 30, 2008 are not cognizable. The evidence also reflected that Leed Construction terminated all 35 employees by the end of July 2008. Thus, any claim for knowingly employing undocumented workers was beyond the statute of limitations.

    On the other hand, Leed Construction committed a number of substantive violations within the five-year statute of limitations because they were “continuing” violations that had not been cured. A substantive paperwork violation continues until it is cured or until the employer no longer has a duty to retain the I-9. U.S. v. Rupson of Hyde Park, Inc., 7 OCAHO no. 940, 331, 332 (1997). An employer is obligated to retain an I-9 form for a former employee for a period of three years after the individual’s hire date or one year after the termination date, whichever is later. 8 U.S.C. § 1324a(b)(3)(B); 8 C.F.R. § 274a.2(b)(2)(i)(A). The expiration date for the retention period is not measured from the date of termination alone, it is measured by comparing a date one year after the termination date to a date three years after the hire date, and determining which is the latest.

    OCAHO found Leed Construction liable for 6 of the 14 alleged substantive violations, and assessed a fine of $605 per violation for a total penalty of $3630.

    A copy of the OCAHO decision is available here.
    Cite as U.S. v. Leed Construction, et al., 11 OCAHO no. 1237 (2014).

    Updated 01-07-2015 at 02:01 PM by BBuchanan

  3. OCAHO Issues $500 Penalty to Small Business

    By Bruce Buchanan, Siskind Susser

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    In what may be the smallest I-9 form penalty assessed against an employer, the Office of Chief Administrative Hearing Officer (OCAHO) has reduced Immigration and Customs Enforcement’s (ICE) proposed penalty of $1,776.50 to $500 in U.S. v. Keegan Variety, LLC, 11 OCAHO no. 1238 (2014).

    Keegan Variety is a mom-and-pop convenience store in Van Buren, Maine on the Canadian border. The store employed only two people – a mother and cousin of the owners. When the two employees were hired in 2006 and 2010, Keegan Variety did not complete I-9 forms for them. It stated they were unaware of any such requirement and because they were relatives, they knew they were authorized to work as U.S. citizens.

    After ICE served a Notice of Inspection on Keegan Variety, it determined the company had failed to timely prepare the two I-9 forms. Since the company only had two employees, ICE found 100% error rate and set the baseline fine at $935 per violation. ICE reduced the fine by 5% because of the small size of the business; thus, the penalty was $888.25 per violation.

    After Keegan Variety declined to pay the $1,776.50 penalty, the case was litigated before OCAHO. In its decision, OCAHO declined to mitigate the penalty based upon good faith or the lack of seriousness of the violations. OCAHO found ignorance of the law -- not knowing of the requirement to have I-9 forms on each employee -- was not an affirmative defense; thus, it declined to mitigate the fine based upon the company’s good faith. Furthermore, OCAHO found the violations to be “serious” but declined to aggravate the penalty on this basis.

    OCAHO used the analysis set forth in U.S. v. Ice Castles Daycare, 10 OCAHO no. 1142 (2011), and U.S. v. Red Bowl of Cary, 10 OCAHO no. 1206 (2013), and the Small Business Regulatory Enforcement Fairness Act, to find the penalty should be reduced to $500 for the following reasons:

    Penalty adjustment to the lower midrange of permissible penalties is warranted due to the small size of the business, the fact that no unauthorized aliens have been hired, the fact that since 2006 Keegan has hired only two employees who are relatives known to be citizens of the United Sates, the general public policy toward leniency to small business entities, and Keegan’s ability to pay the proposed fine on account of operating losses suffered in 2012 and 2013.

    This case begs the question: was it really worth government resources to litigate a case where the maximum penalty was $1,776.50 ? ICE should not be expected to ignore blatant I-9 violations, but perhaps this case could have been resolved with a written warning.

    A copy of the OCAHO decision is available here.
    Cite as U.S. v. Keegan Variety, LLC, 11 OCAHO no. 1238 (2014)
  4. OSC Settles Discrimination Claim against Diversified Business Consulting Group

    By Bruce Buchanan, Siskind Susser

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), within the Justice Department, has reached a settlement with Diversified Business Consulting Group Inc. (“DB Consulting”), an information technology staffing agency headquartered in Silver Spring, Maryland.

    The settlement resolves allegations that DB Consulting’s human resources personnel required non-U.S. citizens, but not U.S. citizens, to present specific types of documents during the employment eligibility verification process to establish their work authority. The INA’s anti-discrimination provision prohibits employers from specifying documents that employees must present during the employment eligibility verification process based on an employee’s citizenship status or national origin.

    Under the settlement agreement, DB Consulting will pay $7,700 in civil penalties to the United States. DB Consulting has also agreed to change its hiring policies and be subject to monitoring of its hiring practices for the next one (1) year and will be required to do the following:

    1) Advise OSC of any changes in the company’s employment policies as they relate to nondiscrimination on the basis of citizenship status and national origin at least thirty (30) days prior to the effective date of such revised policies;

    2) Send all current human resources personnel, and all new human resources personnel to attend a compliance training webinar presented by the OSC; and

    3) Send OSC copies of completed Forms I-9, including attachments for all employees hired between 6 months and one year after the effective date of the settlement agreement.

    A copy of the DB Consulting settlement agreement can be viewed here.
  5. Arizona Businessman and Managers Sentenced for Immigration Violations

    By Bruce Buchanan, Siskind Susser

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    The former owner of Danny’s Family Car Wash and more than a dozen of the company’s former managers and supervisors, were sentenced in federal court in Arizona last month. The defendants pleaded guilty to their roles in a multi-year corporate scheme involving identity theft to employ undocumented immigrants.

    The investigation into the company was led by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) and resulted in the arrest of more than 30 suspects including operators, managers, and employees connected with Danny’s Family Car Wash.

    Beginning in April 2011, the car wash was audited by ICE HSI agents and forced to terminate over 900 employees after the audit found employees had presented fraudulent, insufficient, or ineligible documents at the time of their initial hire. The company attempted to replace the 900 employees with individuals who were authorized to work, but according to ICE those legal replacements were “too expensive” and the car wash’s owner, Danny Hendon, instructed his managers to “bring back” the old employees.

    As a result, Danny’s Family Car Wash was found to have engaged in a multi-year, company-wide scheme to rehire undocumented immigrants using stolen identities in order to pass E-Verify checks. The scheme continued until August 2013, when ICE HSI special agents executed search warrants at the car wash’s corporate headquarters and at various worksite locations. Over 230 unauthorized aliens were found working at the car wash’s locations on the day of the search.

    Danny’s Family Carwash owner, Danny Hendon, was sentenced to 12 months in prison and one year of home confinement. The corporate entities that composed the car wash chain forfeited bank accounts totaling $156,295.77, and Hendon agreed to divest himself of any future ownership, managerial or profit-sharing interest in the organization. The other defendants received sentences ranging from probation to three months in prison.

    This case is reminiscent of the Grand America Hotel and Waste Disposal cases in which company managers rehired unauthorized employees following compliance audits.

    A copy of the press release from ICE HSI can be found here.

    Cite as United States v. Danny’s Management Services LLC, et al., No. 13-CR-01143-PHX-NVW (D. Ariz.)
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