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I-9 E-Verify Immigration Compliance

OCAHO Essentially Upholds ICE’s Penalties

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By: Bruce Buchanan, Sebelist Buchanan Law PLLC

Attachment 1092

Recently, the Office of Chief Administrative Hearing Officer (OCAHO) found Muniz Concrete & Contracting, Inc. (MCCI), based out of Texas, to be in violation of the Immigration Reform and Control Act Section 1324a for 32 violations. Due to these violations, OCAHO determined the appropriate penalty was $16,275 although ICE sought a penalty of $19,989.

The case started with a Notice of Inspection, served on September 27, 2013 and quickly followed with a Notice of Suspect Documents (NSD), Notice of Discrepancies, and a Notice of Technical or Procedural Failures. The Notice of Discrepancies listed 19 employees where ICE discovered a discrepancy related to their identity and employment authorization. Concerning the NSD, ICE found 45 employees had not proven valid work authorization and the company was told to give the employees an opportunity to present “new and better” work authorizations
and without such, they should be terminated because they did not have valid work authorization. MCCI terminated a number of employees after receipt of the NSD. ICE also found 84 technical errors for which MCCI was given 10 days to correct without facing a penalty.

Finally, ICE issued a NIF alleging three counts - knowingly employing two unauthorized employees, failure to prepare 10 Form I-9s, and failure to properly ensure completion or the completion of 20 Form I-9s.

MCCI argued that under OCAHO case law, the fine amount was too high. ICE responded it simply utilized the fine matrix. Since there were 32 substantive violations out of 89 Form I-9s, it determined MCCI should be penalized $605 per violation because the percentage was between 30 and 39%. ICE enhanced the base penalty by 5% for the seriousness of the violations and another 5% for the hiring of six unauthorized workers. Furthermore, ICE charged the minimum of $375 each for knowingly employing the unauthorized workers.

ICE asserted MCCI had constructive knowledge of the unauthorized status of two employees because their work authorization cards had expired. ICE failed to provide any analysis of why it set these penalties at the lowest level. OCAHO found “knowingly” continuing to employ an unauthorized worker was more serious than paperwork violations; thus, it increased the penalty to $800 each (still 25% of the possible $3200 penalty).

On the ten violations for failure to prepare an I-9 form or failure to timely prepare one, there was little dispute of the facts. Same applies for the 20 alleged substantive paperwork violations – no employee signature; no A numbers for lawful permanent residents, no box checked as to status; or only a list C document recorded in Section 2.

There were two faults within ICE’s analysis of the penalties. One, it refused to consider a 5% mitigating factor even though MCCI was clearly a small employer with about 50 employees. Two, it did not provide any definitive evidence of the unauthorized status of some employees. Instead, it relied on the fact that the individuals were listed on the NSD. But, as we all should know by now, being listed on a NSD is not proof of unauthorized status.

Based upon the overall facts of the case, ICAHO decided to reduce penalties for Counts II and III. Though, as previously stated, it increased the penalty for the two Count I violations. OCAHO ordered MCCI to pay a fine of $16,275, a reduction of about 13%.

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