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ICE

OCAHO FINES TEXAS RESTAURANT $33,379.50 FOR 32 I-9 VIOLATIONS

Immigration and Customs Enforcement (ICE) served Jula888, LLC (Para Tacos La Chilanga) on August 4, 2014 with Notice of Inspection (NOI) which required production of the Forms I-9 for its employees, along with other business documents by August 7, 2014. On August 13, 2014, Jula888, through their attorney, notified ICE that no records were available to be produced. On December 15, 2014, ICE served Jula888 with Notice of Intent to Fine (NIF) with one count, alleging 32 violations of 8 USC 1324(a)(1)(B). Specifically, failure to prepare and/or present Forms I-9 for 32 employees. ICE proposed a fine of $34,408.00. Jula888 timely filed a request for a hearing before an Administrative Law Judge (ALJ) with the Office of the Chief Administrative Hearing Officer (OCAHO). ICE filed its complaint incorporating the violations included in the NIF, including the proposed fine. On September 21, 2015, Jula888 filed its prehearing statement, agreeing to the first six proposed stipulations, but not the seventh which concerned whether or not the 32 individuals were in fact employees of the company. On December 18, 2015, ICE filed a Motion for Summary Decision contending that it has it burden demonstrating the absence of a genuine issue of material fact as to Jula888’s liability for the 32 violations. Jula888 filed a Response to the government’s Motion for Summary Decision on January 20, 2016 arguing that the Government has not presented any evidence regarding the number of people employed by Jula888. On June 9, 2016, the ALJ ordered the parties to submit additional evidence. Jula888 did not provide any additional evidence. The evidence from ICE included testimony from former employees confirming the number of employees at each location and sworn statements from current employees confirming the number of employees, the fact that they were undocumented and that wages were withheld to pay smuggling fees. Based on the evidence in the record, OCAHO granted the government’s motion but adjusted the fines as a matter of discretion to an amount close to the maximum of permissible penalties.

5th Circuit Overturns OCAHO I-9 Fines for MN Staffing Company

On Monday, August 11, 2016, the 5th Circuit Court of Appeals vacated a $226,000 fine again Employer Solutions Staffing Group (ESSG) in a ruling that determined that it was not at that time a violation for an employer to have one of its agents inspect original employee documents in Texas and have an employer representative in Minnesota complete the employer attestation in Section 2 of the Form I-9 after reviewing the photocopies of the documents sent by the agent in Texas. In the underlying cases, ICE alleged that ESSG failed to ensure that 242 employees properly completed Section 1 of the Form I-9 or failed to properly complete Section 2 or 3 of the Form I-9, thereby committing substantive I-9 violations. The 5th Circuit said that the INA was unclear as to whether the same person who reviews the original documents must also complete Section 2 or 3 of the Form I-9 and that therefore, it was reasonable to conclude that the attestations were valid as long as the same “entity” both reviews the original documents and completes the Form I-9 attestation. They also found that neither the regulations or the Form I-9 current at that time provided any additional guidance. Indeed, after fining ESSG, but before the Court made its decision, ICE changed the Form I-9 instructions to make it clear that the same person who examines the document must be the same person that signs the Form I-9. Employers who may be in the situation for Forms I-9 completed before 2013 should contact an immigration attorney to determine if the 5th Circuit decision affects their situation. See Employer Solutions Staffing Group v. OCAHO, No. 15-60173 (5th Cir. Aug. 11, 2016).

INCREASES TO I-9 VIOLATIONS AND OTHER IMMIGRATION RELATED EMPLOYMENT VIOLATIONS

Today, the U.S. Department of Justice (DOJ) increased the possible fines and penalties for employers with I-9 employment eligibility violations including the employment of unauthorized workers and/or employers who have violated the anti-discrimination provision of the Immigration and Nationality Act (INA). These increases are due to the Bipartisan Budget Act of 2015 which was enacted in late November 2015 and will take effect on August 1st for violations that took place after November 2, 2015.

Under the interim final rule, the minimum penalty for employment of an unauthorized worker will jump from $375 to $539 and the maximum penalty will jump from $3,200 to $4,313. Those with multiple violations may face a penalty of $21,563. I-9 paperwork violations will increase from a maximum of $1,100 to $2,156 while the new top penalty for unfair immigration-related employment practices violations will increase to $3,563.

I-9 and employment Immigration related violations are enforced by the DOJ through the Office of Special Counsel for Immigration-Related Unfair Employment Practices and the Office of the Chief Administrative Hearing Officer.

Minnesota Promotional Marketing Company Liable for I-9 Violations

The Office of the Chief Administrative Hearing Officer (OCAHO) found International Packaging Inc., a Minnesota-based promotional marketing company liable for failing to prepare or present Forms I-9 for 21 of its employees and for substantive errors found in 73 Forms I-9. Form I-9 is used to confirm an employee’s identity and work authorization. Fines have yet to be levied but the government is arguing for baseline penalties of $935 for each violation. The judged stated that employers may be entitled to a “good faith” defense for paperwork technical or procedural violations but that defense has no application to substantive violations, such as those in this case. This is the second recent decision against a Minnesota employer by OCAHO. Last week, as we blogged, Golden Employment Group Inc. was found liable for over 465 Form I-9 violations.

Temporary Employment Company Liable for Over 465 I-9 Violations

The Office of the Chief Administrative Hearing Officer (OCAHO), recently found a temporary employment company, Golden Employment Group Inc., located in Minnesota, liable for over 465 I-9 violations (United States of America v. Golden Employment Group Inc., OCAHO Case Number 15A00037). Specifically, the Judge found that they failed to timely present 125 Form I-9s and failed to prepare 236 Form I-9s. They also racked up fines for not making sure the employee completed Section 1 of the Form I-9 and other infractions. 40 claims were dismissed because Immigration and Customs Enforcement failed to overcome its burden of proof. This case serves as a warning that use of E-Verify does not protect an employer from failing to properly prepare, retain, re-verify and present when asked a Form I-9 for employees hired after November 6, 1986.

JOINT GUIDANCE ISSUED FOR EMPLOYERS CONDUCTING I-9 INTERNAL AUDITS

The U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) and the U.S. Immigration and Customs Enforcement (ICE) have issued joint guidance intended to help employers properly perform internal Form I-9 audits.

While this guidance provides helpful tips aimed at avoiding discrimination in the internal audit process, following this guidance will not insulate an employer form liability under the anti-discrimination provisions of the Immigration and Nationality Act (INA).

The guidance is designed to outline the audits’ scope and purpose and provide potential issues that should be considered before performing an internal audit. It also provides guidance on correcting errors and omissions. The guidance can be found at: https://www.ice.gov/sites/default/files/documents/Document/2015/i9-guidance.pdf.

Ex-University CEO Sentenced to Prison for Student Visa Fraud

Herguan University’s former CEO, Jerry Wang, was sentenced to one year in prison and order to forfeit $700,000 for his part in a student visa scheme.

Mr. Wang admitted to submitting false document to the Department of Homeland Security’s (DHS) Student and Exchange Visitor Program (SEVIS) program. He also admitted to participating in a schedule to commit visa fraud involving 100s of Forms I-20, Certificate of Eligibility for Non-Immigrant Students, as well as allowing unauthorized access to the DHS computer database.
The fraud was uncovered by the Document and Benefit Fraud Task Force — an agency created by DHS, and the U.S. Departments of Justice, Labor and State to combat document and immigration benefits fraud — in an investigation spearheaded by ICE, the agency said.

With this case, ICE reaffirmed its intent to “aggressively target those who commit student visa fraud out of greed and self-interest. Their actions undermine the integrity of this country’s immigration laws and it will not be tolerated.”

ICE FINES WASHINGTON APPLE ORCHARD MILLIONS FOR i-9 VIOLATIONS

A $2.5 million dollar settlement was reached between the U.S. Immigration and Customs Enforcement (ICE) and Broetje Orchards, LLC for violations of the Immigration Reform and Control Act of 1996 (IRCA). The multimillion dollar settlement was a result of ICE’s findings during an I-9 audit performed by ICE”s Homeland Security Investigations (HIS) last summer. Specifically, HSI found that almost 950 of the company’s employees may not have been authorized to work in the United States. In the settlement, although Broetje Orchards did not admit any criminal wrongdoing, they did acknowledge that it continued to employ unauthorized workers after being notified by ICE that those employee did not have permission to work in the U.S.

Pursuant to IRCA, employers are required to properly complete and maintain for inspections original Form I-9s for all current employees (with limited exceptions) and for some terminated employee. An employer must retain the completed Form i-9s for terminated employees for a period of at least three years from the date of hire or for one-year after termination, whoever is longer. Audits of this kind have been increasing in number and fine amount in the past few years.

OCAHO Reduces Fines Notwithstanding Backdating of Forms I-9

The Office of the Chief Administrative Hearing Officer (OCAHO) reduced the penalty for Liberty Packaging, Inc. after finding that although backdating I-9 forms is a serious violation, Liberty Packaging Inc. (Liberty) is a small employer with no history of previous violations and the unauthorized status of the five individuals listed in the NSD was not established. (U.S. v. Liberty Packaging, Inc., 2/24/15) .

Immigration and Customs Enforcement (ICE) filed a complaint alleging that Liberty failed to timely prepare 18 forms I-9 in violation of Immigration Reform and Control Act of 1986 (IRCA). ICE served Liberty with a Notice of Inspection (NOI) on July 31, 2012 and subsequently conducted a Form I-9 inspection in response to which Liberty provided an employee list, recent payroll records and 21 forms I-9. On September 25, 2012, ICE served Liberty with a Notice of Suspect Documents (ND) and a Notice of Intent to Fine (NIF) on March 20, 2013. Liberty’s answer was accompanied by a different set of 19 I-9s. ICE filed their complain with OCAHO on January 2, 2014.

For various reasons discussed in the opinion, ICE asserted that Liberty backdated the forms I-9. As such, they set a baseline penalty of $935 for each of the 18 violations and enhancements totaling 15% were added for bad faith, seriousness of the violations and presence of unauthorized workers. OCAHO in its opinion found that although an employer may not have done anything wrong, they are responsible for the wrongs that may be perpetrated by their agents of a form I-9. Notwithstanding, OCAHO determined that ICE failed to show that the penalties should be enhanced based on the presence of allegedly unauthorized workers in Liberty’s workforce and that a NSD is not sufficient in itself to establish a worker’s unauthorized status. As such, OCAHO reduced the penalty to a rate of $650 for each of the 18 violations.

Several lessons to be learned:

1. Never backdate a Form I-9.
2. Never fire an individual who is listed on the NSD without first allowing them to present other evidence of work eligibility and identity.
3. A NSD is not enough to determine a worker’s unauthorized status.
4. Always cooperate with ICE and retain the services of an immigration attorney with extensive experience with I-9 compliance.

SAN ANTONIO BAKERY FINED 15K FOR 32 SUBSTANATIVE VIOLATIONS

Horno MSJ Ltd. Co. is a bakery in San Antonio, Texas which opened in March 2006. It is jointly owned by an elderly married couple. ICE served Horno with a Notice of Inspection (NOI) and subpoena on July 31, 2012. The inspection of the I-9s was scheduled for several days later. Horno presented 26 original I-9s and various other documents. After the inspection ICE served Horno with a Notice of Suspect Documents (NSD) and a Notice of Discrepancies in September 2012. A Notice of Intent to Fine (NOF) was served on March 5, 2013. ICE found that Horno failed to present nine Form I-9s and that the 26 I-9s presented were deficient. ICE fined Horno over 31K for the 32 violations. Horno argued that it was not required to present the nine Form I-9s since those individuals never showed up for work. However, the Administrative Law Judge found Horno was indeed liable since they paid these nine individuals to attend orientation, thus they were Horno’s employees and as such, Horno was required to have each individual complete Section 1 of the Form I-9 since the regulations require that it be completed on the first day of hire. Based on their size, the nature of the violations and the current status of the business, the ALJ ultimately lowered the fine to $14,600. The moral of this story is that if as an employer, you must make sure that you begin the Form I-9 process, especially if you pay applicants to attend orientation and/or training and make sure on that first day that they complete Section 1.