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I-9 E-Verify Immigration Compliance

DOJ Upholds ICE Fines Despite 5-year Statute of Limitations

Rating: 2 votes, 5.00 average.
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).

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

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