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I-9 E-Verify Immigration Compliance

Court Upholds OCAHO’s Penalty Finding

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By: Bruce Buchanan, Sebelist Buchanan Law

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The Second Circuit Court of Appeals in Buffalo Transportation, Inc. v. USA upheld the penalties assessed by the Office of Chief Administrative Hearing Officer (OCAHO). Previously, OCAHO found Buffalo Transportation, Inc. (BTI) violated the Immigration Control and Reform Act by committing 135 substantive violations and assessed a civil penalty of $75,600.

In its appeal, BTI contended 54 of the 135 violations were technical, rather than substantive, violations. For these 54 violations to be dismissed, BTI would have to be successful in their appeal and Immigration and Customs Enforcement (ICE) would have to not give BTI 10 days to correct the technical errors.

The issue before the Court was whether OCAHO correctly determined that the 54 Form I-9s presented to ICE were not prepared within three days of the employees’ hiring date. Under the applicable regulation, an employer must prepare an I-9 form within three days of hire and failure to do so is considered a substantive violation.

In determining this issue, the Court applied deference to OCAHO’s interpretations of the relevant regulations regarding the timing of when I-9 forms must be prepared. After applying the appropriate deference, the Court stated OCAHO correctly determined there was no evidence that any of the I-9 forms were timely prepared; rather, the 54 Form I-9s were prepared after ICE delivered its Notice of Inspection to BTI.

BTI also asserted it should have been given a warning notice rather than a penalty. However, the Court noted it is within the discretion of ICE to do so and in this case, ICE declined to use their discretion to issue a warning notice. Thus, the Court could not order ICE to issue a warning notice.

Additionally, BTI argued it kept copies of the employees’ documents reflecting work authorization which shows substantial compliance. The Court noted the regulations clearly do not allow retention of these documents to relieve the employer from completing section 2 of the I-9 forms.

Finally, BTI argued the amount of the penalties was arbitrary. The Court noted OCAHO considered the statutory factors and ability to pay and reduced the penalties accordingly. The Court concluded OCAHO made an “allowable judgement” in determining the penalties and it would not and could not substitute its judgement.

This decision is consistent with most other court of appeals’ decision which uphold OCAHO’s findings and the assessment of the penalties.

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