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I-9 E-Verify Immigration Compliance

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  1. OCAHO Rejects Most of Dentist’s Defenses

    By Bruce Buchanan, Siskind Susser

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    In the last decision of 2014 from the Office of the Chief Administrative Hearing Officer (OCAHO), the administrative law judge held that Dr. Robert Schaus, a dentist, was liable for failing to timely prepare and/or present I-9 forms for 10 employees at his dental office. The ALJ reduced his penalty from $10,030 to $5,400.

    Dr. Schaus’s dental practice is located in Clarence, New York, where it operates as a sole proprietorship. After Immigration and Customs Enforcement (ICE) served Schaus with a Notice of Inspection (NOI), he provided a list identifying the hire dates for eight current employees, and the hire and termination dates for three former employees, along with six I-9 forms and other requested documentation. Schaus identified two employees as working on an “as needed” basis and one employee who had been terminated when she joined the Army Reserves several years before.

    Schaus argued that he did not need to retain the I-9 forms of current employees, who had worked greater than three years. OCAHO rejected this defense as it is fundamentally “wrong as a matter of law”. An employer must always retain the I-9 forms of current employees, including those employees who are working on an as-needed basis.

    OCAHO dismissed one allegation related to the employee who had been terminated on September 20, 2010, when she joined the Army Reserves. Although the employee’s name was listed in quarterly reports for two years, no wages were reported in any of those quarters. Since the employee only was employed for five months, the duty to retain her I-9 form ended three years from her date of hire or April 19, 2013, four days before the NOI was issued.

    Schaus also asserted that certain I-9s contained only technical violations -- the omission of a date in Section 2 of the I-9 forms. If so, Schaus would get the opportunity to cure within ten days’ notice from the government. However, the violations concerned the failure to promptly prepare the I-9 forms, which is a substantive violation. Thus, OCAHO rejected this defense. In doing so, it stated a violation is not cured by a belated (after the NOI was served) or partial completion of the I-9 forms.

    In assessing the penalties for the paperwork violations, ICE set a baseline penalty of $935 for each of the employees hired before September 29, 1999, and $850 for each of the employees hired after September 29, 1999. ICE mitigated the penalty by five percent for each violation, based on the small size of Schaus’ business, and the absence of unauthorized workers. However, ICE aggravated the penalty by five percent for each violation, based on the business’s alleged bad faith in backdating the I-9s it presented and the seriousness of the violations. OCAHO agreed with the mitigation and aggravation of the penalties, except it determined the evidence did not support a finding of bad faith.

    OCAHO reduced the penalty from $10,030 to $5,400 because it should be closer to the “midrange” of permissible penalties and more in line with those imposed on other small family businesses with similar violations. For the six violations involving failure to timely prepare I-9 forms, the penalty was set at $500 per violation. For the four violations involving the failure to present I-9s, the penalty was set at $600 per violation.

    A copy of the OCAHO decision is available here.
    Cite as U.S. v. Dr. Robert Schaus, D.D.S., 11 OCAHO no. 1239 (2014).

    Updated 01-16-2015 at 09:54 AM by BBuchanan

  2. 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.
  3. 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

  4. 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)
  5. 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.
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