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I-9 E-Verify Immigration Compliance

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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