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I-9 E-Verify Immigration Compliance

OCAHO’s Decision Not So Golden for Golden Farm Market

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By Bruce Buchanan, Sebelist Buchanan Law PLLC

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In one of its first decisions of 2016, the Office of Chief Administrative Hearing Officer (OCAHO) upheld the penalties of $7106 assessed by Immigration and Customs Enforcement (ICE) in Wave Green d/b/a/Golden Farm Market, 11 OCAHO no. 1267 (2016).

Golden Farm Market is a small grocery store in Buffalo, New York, which employs eight workers. After Golden Farm Market received a Notice of Inspection, it apparently had I-9 forms prepared for the first time for seven of its eight employees and did not present an I-9 form for the eighth employee.

Preparation of I-9 Forms after ICE Inspection

Golden Farm Market never admitted preparation of the I-9 forms at that time but the following evidence supported such a finding: all of the seven I-9 forms were prepared in the same handwriting; all of the I-9 forms used the March 8, 2013 edition even though two of the employees had hire dates of 2008 and 2012; and another employee’s I-9 form provided a hire date of January 1, 2012 while a List B document driver’s license was not issued until March 23, 2013. In order that backdating was not more obvious, none of the I-9 forms were signed or dated by Golden Farm Market or the employees.

Calculation of Penalty

Based upon the I-9 errors and omissions, ICE determined there was a 100% error rate; thus, the baseline penalty was $935. ICE mitigated the penalty by a total of 10% for Golden Farm Market being a small business and the lack of employment of undocumented workers. However, ICE added 5% based upon the aggravating factor of seriousness of the violations. ICE did not mitigate or aggregate the penalties for no prior history of I-9 violations and lack of good faith/bad faith. Overall, ICE assessed a penalty of $888.25 per violation.
Golden Farm Market did not offer any evidence to refute the allegations; rather, it just denied all allegations and refused to even stipulate to facts favorable to it. Golden Farm Market raised the issue of inability to pay but refused to comply with a subpoena for their financial records.

ALJ’s Decision

The Administrative Law Judge (ALJ) for OCAHO found in favor of ICE on all eight allegations. Furthermore, the ALJ agreed with ICE’s determinations on the mitigating and aggravating factors related to the penalties. Finally, the ALJ found Golden Farm Market had not established an inability to pay the penalties because it refused to provide its financial records even though subpoenaed by ICE. Thus, the ALJ adopted ICE’s proposed penalty of $7,106.
The employer’s conduct in this case was egregious because it failed to prepare any I-9 forms for newly hired employees, it provided I-9 forms to ICE which were newly prepared although it stated they were prepared in a timely manner, and the I-9 forms were unsigned and undated.

Takeaways

Golden Farm Market’s strategy of “stonewalling” ICE was highly ineffective and in most cases is counter-productive for your client. If Golden Farm Market had conducted an informal I-9 audit before the Notice of Inspection and corrected its errors by completing the I-9s without attempting to backdate them, their liability would have been substantially less.

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