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Government Agency Actions - USCIS, ICE, etc.

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.

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