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I-9 E-Verify Immigration Compliance

OCAHO Issues Opinion Ruling Against Golf Club; by Bruce Buchanan, Siskind Susser

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OCAHO has issued another decision, U.S. v. Golf International d/b/a Desert Canyon Golf, 10 OCAHO no. 1214 (2014), involving a company committing numerous I-9 violations. Desert Canyon is a public golf course near Scottsdale, Arizona.

After Immigration and Customs Enforcement (ICE) served Desert Canyon with a Notice of Inspection and Subpoena on August 14, 2012, the company produced the I-9 forms for 157 active and terminated employees, payroll records, and other documents. After ICE auditors reviewed the documents, they issued a Notice of Suspect Documents to Desert Canyon on September 27, 2012 concerning the employment of alleged unauthorized workers. A Notice of Intent to Fine was issued on April 10, 2013 with ICE seeking approximately $105,000 in penalties.

ICE filed for summary judgment on the issue of liability for the I-9 violations. In response, Desert Canyon argued it had corrected all of the alleged violations and they were technical, not substantive, violations. OCAHO disagreed finding that “all” of Desert Canyon’s violations were substantive. For the definition of a technical versus substantive violation, click here for a copy of the Virtue Memo -cited as Interim Guidelines,74 No. 16 Interpreter Releases 706 (Apr. 28, 1997).

Desert Canyon also argued it did not violate the law because it used E-Verify. ICE attorneys pointed out that the “E-Verify Memorandum of Understanding that must be signed by a participating employer provides that ‘The Employer understands that participation in E-Verify does not exempt the Employer from the responsibility to complete, retain, and make available for inspection Forms I-9 that relate to its employees.’”

OCAHO ultimately determined that ICE met its burden of proof for summary judgment on three of the four counts with the fourth count still pending.

Some of the errors cited by OCAHO were:

-failure to complete any information in Section 2 on 93 Form I-9s;
-failure to ensure that an employee who indicated they were a Permanent Resident entered an alien number, which “prevents the government from verifying the employee’s work authorization status”;
-failure to provide the expiration date or attach a copy of an employee’s driver license that was used as a List B document;
-failure to ensure that an employee checked a box in Section 1 to identify his or her status as a U.S. citizen, lawful permanent resident, or alien authorized for work;
-failure to ensure the signing of the Section 1 attestation, which “defeats the purpose of the verification process.”

Overall, OCAHO found Desert Canyon liable for 129 violations, and left the amount of penalties to be determined after further filings by the parties.

A copy of the OCAHO decision is available here.

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Updated 04-11-2014 at 05:06 PM by BBuchanan

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