More Reason to Quickly Process I-9s

A 35-year-old California metal finishing factory with 26 employees found itself at the receiving end of an ICE notice of Inspection and Notice of Intent to Fine in 2010 and 2011.  ICE asked for $25,525.50 (the maximum fine for the alleged violations was $28,600) for Anodizing Industries, Inc.’s (Anodizing) failure to timely complete I-9 forms for its employees under 8 U.S.C. § 1324a(a)(1)(B).  The alleged delays in completing the forms ranged from a matter of weeks to twenty-two years.  USA v. Anodizing Industries,Inc., 10 OCAHO no. 1184, May 24, 2013.

The case helps to clarify the “Good Faith” defense for failing to timely complete I-9 forms provided by 8 U.S.C. §1324a(b)(6), but the outcome is not favorable to the pocketbooks of small businesses or immigration attorneys hoping to save their clients from fines.  The OCAHO reaffirmed that the “Good Faith” defense has no application to substantive violations, and distinguished substantive violations from procedural violations or those of a record-keeping nature.  Several substantive violations first noted in the March 6, 1997 Virtue Memorandum, are: failing to complete the form in a timely fashion, lack of employee signature in the section 1 attestation, lack of a signature by a representative of the employer in the section 2 attestation, and the omission of proper documents to establish identity or employment eligibility, or the listing of improper documents.

What then is left for the “Good Faith” defense to cover?  Employers cannot mess up section 1.  Or Section 2.  Section 3 only applies in limited circumstances as it relates to reverification and rehires.  The bottom line is this: fill out the form correctly, and do it within three days, or there will be no sympathy from the ICE or the OCAHO.  In the government’s defense, the instructions for the form are clear and detailed.  As is par for the course in government form instructions, the length of the instructions is twice the length of the form itself.

The OCAHO did cut Anodizing a break on the penalty assessment.  Factors to be considered for penalties for violations are: 1) the size of the business of the employer 2) the good faith of the employer 3) the seriousness of the violations 4) whether the individual was an unauthorized alien and 5) the history of previous violations.  8 U.S.C. § 1324a(e)(5).  Anodizing’s penalty was reduced to $600 for each violation, for a total of $15,600.

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