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I-9 E-Verify Immigration Compliance

OCAHO Rejects More Arguments from GA Company; by Bruce Buchanan, Siskind Susser

Rating: 8 votes, 5.00 average.
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M&D Masonry of Americus, GA is back again, appealing last month’s Final Order from Administrative Law Judge (ALJ) Ellen K. Thomas who assessed the company $228,300 in civil money penalties, and found it liable for 338 violations related to I-9 Form documentation. I covered that decision in a previous article (here), and the case is now cited as United States v. M&D Masonry, Inc., 10 OCAHO no. 1211.

The company filed a timely request for administrative review and the case was reviewed de novo this month by Chief Administrative Hearing Officer Robin M. Stutman of the Office of the Chief Administrative Hearing Officer (OCAHO). After M&D raised a number of issues on appeal, OCAHO still determined that M&D received “generous” treatment from ICE given the facts in this case, and it received a significant reduction in penalties from the ALJ.

Highlights of OCAHO’s decision
- M&D is not a large business deserving of an aggravated penalty, nor is it a small business deserving a mitigated penalty. However, the ALJ still mitigated (lowered) the penalties in M&D’s favor by more than $200 per violation. ALJ decision upheld.
- M&D’s pre-signing of more than 100 I-9 forms was wrong, and ALJ’s analogy to Broussard-Wadkins (a RICO case from federal district court) regarding false attestations was legally and factually right. ICE was unduly generous in treating good faith as a favorable consideration in this case. ALJ decision upheld.
- M&D’s challenges to ICE’s “penalty matrix” used for calculating penalties are not a basis for modifying the ALJ decision when the ALJ has wide discretion in determining a penalty amount. The ALJ’s $104,513.25 reduction of ICE’s originally proposed penalty is upheld.

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Takeaway
No business can afford to absorb a six-figure penalty from the U.S. Government. This case is a great example why any employer, large or small, would be wise to have an I-9 Compliance Policy in place and self-audit periodically under the supervision of an immigration compliance attorney.

A copy of the decision is available here. Cite as United States v. M & D Masonry, Inc., 10 OCAHO no. 1215 (2014).

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Comments

  1. Jacqueline Longnecker's Avatar
    A perfect example that ICE audits are alive and kicking. Recommend counsel or independent auditor be apprised of the audit to ensure any violations are being corrected in the proper manner. Seems ICE wants more and more notes to justify even the most obvious reasons for corrections or the preparation of a new form being added to the original form. Just as important, E-verify users beware. We are seeing a rise in "desk reviews" when there are anomalies in submissions. This can result in further investigation and suspension of using the program. Recommend that, while it is presented as voluntary, best to respond. Include the review of E-verify submissions in desk or independent audit.
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