While DHS/ICE continues to issue Notices of Intent to Fine (NOFs) at an unprecedented rate for Form I-9 related infractions, this is yet another reminder that you can choose to pay the fine or you can contest the fine and file for a  hearing (within 30 days of receipt of the NOF) before an Administrative Law Judge (ALJ) who handles cases related to employer sanctions, document fraud and unfair immigration-related employment practices.  OCAHO has more than proven that they are willing to reassess and lower fees in just about every case in recent months.

Note that many employer sanctions cases never proceed to the hearing stage because either the parties reach a settlement with the approval of the ALJ, or the ALJ resolves a case through a prehearing ruling.

We recommend that your first step in the process be to retain experienced representation that specializes in the practice area of employer compliance to guide you step by step through the process – don’t attempt to go this alone. The next step is to understand the process that has been summarized very efficiently in the recent Fact Sheet that we refer to here

Should you have any questions or wish to become a client of our office, please contact us or refer to our services & solutions page.

By:  Timothy Sutton, Communications Editor

In the USDOJ published decision United States v. Four Seasons Earthworks, ICE made it clear that with respect to form I-9 compliance, late is not any better than never. Four Seasons failed to pass an ICE audit that found incomplete form I-9 List A and List C information. The company asserted they obtained every employee’s social security number and maintained supporting documents (like military IDs and birth certificates) necessary to verify employment eligibility. ICE’s response was terse, “Late production nevertheless does not absolve the respondent from liability.”

Securing qualified employees can be stressful. Once a worthy recruit is hired, employers may be anxious to have the new-hire begin working even before they secure the required documentation to complete the I-9 form. Improper documentation constitutes a violation under the INA. In it’s investigation of Four Seasons Earthworks, the ICE Forensic Auditor calculated penalties based upon the following formula:

 Number of Violations divided by the total number of current & former employees up to inspection date = % of base fine

Additionally, 5% increases for bad-faith or serious violations are tacked on to penalties. The number of undocumented workers, the size of a business, and previous violations are also considerations that increase penalties.

Thankfully, an employer’s good faith attempt to comply with obligations can influence a penalty reduction. ICE views hiring violations on a continuum, recognizing violations vary in severity. If your company finds itself in a similar situation with employees who are not properly documented, hiring immigration compliance professionals may greatly reduce your chances of incurring audit-initiated penalties. Contact us for support in planning and implementing legally sound solutions to protect your company’s future:  562 612.3996 | info@immigrationcompliancegroup.com.

Here’s another sad story from the restaurant industry. Snack Attack Deli, d/b/a  a Subway Restaurant franchise in Fayetteville North Carolina, has been neglecting filling out I-9 Employment Eligibility forms for several years to the tune of 108 I-9 violations producing a serious fine of some $111,078, as reported by the Department of Justice, Office of the Chief Administrative Hearing Officer (OCAHO) on February 11, 2011.  The Judge considered the small size of the company, the number of employees and their payroll and reduced the penalty down to $27,000 which was still difficult for the small franchise to handle.

Here’s the back story: Snack Attack produced 11 incomplete I-9 forms for 108 employees, current and mostly past employees, following the receipt of an NOI requesting I-9 forms for current and past employees for years 2006 through 2009 from ICE in early 2009.  The ICE auditor provided the owner with a copy of a sample I-9 form along with a copy of the I-9 Employer Handbook and told one of Snack Attack’s employees that if new forms were prepared, they should not be back dated.  Section 2 of the 11 I-9 forms that were produced were not filled out at all, and 7 of the 11 forms had been back dated  – including one for the restaurant owner.  Amazing- go figure!

ICE then issued a Notice of Intent to Fine in July 2009 stating that Snack Attack committed 108 I-9 violations including improper completion of the 11 forms, failing to complete I-9 forms for 97 employees.  Each violation carried a penalty of $1,028.50 for a total of $111,078.

Snack Attack alleged that the back dating was not their fault because it occurred in section 1 and that the owner had sold the business to another person, although there was no evidence to support his claim and so the judge issued civil penalties in the case.

The Judge wrote that failure to prepare an I-9 form is amongst the most serious of paperwork violations, in addition to not filling out the employer attestation in section 2.

It should be stated that there was no evidence of unauthorized workers and the 97 employees for whom no I-9’s were filled out, remains unresolved.  ICE’s position was that Snack Attack’s practices could very easily lead to the hiring of unauthorized workers.

We cannot stress enough that employers must be proactive and generate an I-9 form for all their employees and should catch these serious violations right now, particularly if you are in an industry such as food service, manufacturing/distribution, the garment industry, construction or the hospitality industry that are making headlines every week and creating media nightmares for employers

We also learn with this ruling that although fines are calculated based on regulatory criteria, there is some hope of relief based on a company’s size and business volume.  The question is, could there have had a much happier ending if Snack Attack would have retained the services of a competent attorney with a specialty in employer compliance issues to represent them during the audit?  We say unequivocally, “yes!”

For more information on employer compliance issues, please visit our I-9 Resource Center.