Bloggings on I-9 E-Verify Immigration Compliance

Bruce Buchanan

OCAHO Reduces Contractor's Fine by 40 Percent

Office of the Chief Administrative Hearing Officer (OCAHO) has found Four Seasons Earthworks
Inc. (Four Seasons) violated the Immigration Reform and Control Act (IRCA) but reduced its proposed fine from $15, 361.50 to $9,000.

In United States v. Four Seasons Earthworks, 10 OCAHO No. 1150 (2012), Four Seasons was charged with 19 violations of IRCA for its failure to ensure the completion of Section 1 and failed to complete Section 2 and 3. Four Seasons, a family-owned building contractor, based in Wilmington, North Carolina, was audited by Immigration and Customs Enforcement (ICE) in November 2009. Interestingly, ICE only requested the I-9s of the 22 current employees and 21 former employees, whose employment ended after January 1, 1999. Normally, ICE goes back at least two years for terminated employees.

The violations concerned its failure to ensure completion of Section 1 and/or failure to properly complete Section 2 or 3. Essentially, Four Seasons only entered data in List B even though IRCA requires you to complete both List B and C or List A. Four Seasons argued the above violations were technical, not substantive, because the I-9s provided the social security numbers in Section 1 and the employees' personnel files contained social security cards and birth certificates - both List C
documents. Furthermore, Four Seasons produced some of these documents for ICE after the initial audit.

OCAHO dismissed Four Season's arguments as contrary to established law, citing 8 C.F.R. section 274a2(b)(3) which states: "the copying or electronic image (of identity documents) does not relieve the employer from the requirement to fully complete section 2 of the form I-9." Furthermore, OCAHO stated that Four Seasons late production of copies of supporting documents does not excuse the company's failure to enter the necessary information on the I-9. It would not even have excused Four Seasons' violations even if timely produced.

Concerning the fine, the range is from $110 to $1,100 per violations. Thus, based on 19 violations, the range is from $2,090 to $20,900. ICE determined there were 19 violations which was divided by 43 - the total number of employees/former employees, equaling about 44%. According to ICE's grid, a percentage between 40 and 49% equals a base fine of $770 per violation.

After the base fine is determined, the following five factors must be assessed: 1) the size of the business of the employer, 2) the good faith of the employer, 3) the seriousness of the violation(s), 4) whether or not the individuals involved were unauthorized aliens, and 5) any history of previous violations by the employer.  ICE found a 5% aggravation for the seriousness of the violations but did not increase/decrease the base fine on the other four factors. Thus, $770 + $5% = $808.50.

Four Seasons argued it should be treated as a small company, and was entitled to a 5% reduction in the base fine. OCAHO agreed based upon its gross receipts of $1.9 million in 2010 and its current workforce consistently of only 22 employees. OCAHO did not concur with Four Seasons' argument that it should be found to have committed serious violations.       

OCAHO concluded the base fine should be reduced to $500 per violation or a total of $9,500. In so doing, OCAHO found: "Given the downward trend in construction and the subsequent bankruptcy of a separate family-owned company it is reasonably clear that there have been significant financial setbacks for this small company over the last few years. Considering the record as a whole and the statutory factors in particular, the penalties will be adjusted as a matter of discretion to an amount closer to the midrange of permissible penalties.

This decision continues a trend that companies who contest their ICE fines for substantive I-9 violations will have the amount of their fine substantially reduced.

About The Author

Bruce E. Buchanan is an attorney at the at Nashville Office of Siskind Susser, P.C. He represents individuals and employers in all aspects of immigration law, with an emphasis on immigration compliance for employers, and employment/labor law. Mr. Buchanan received his law degree from the Vanderbilt University School of Law in 1982 and a B.S. degree from Florida State University, where he graduated magna cum laude. Mr. Buchanan has been in private practice since 2003. Beforehand, he served as Senior Trial Specialist for the National Labor Relations Board for 20 years. He also served from 1991 to 2003 as Adjunct Professor at William H. Bowen UALR School of Law, where he taught courses in Labor Law and Employment Law. Mr. Buchanan was chair of the Tennessee Bar Association's Immigration Law Section from 2011 to 2012 and has been the editor of the TBA's Immigration Law Section Newsletter and the TBA's Labor and Employment Law Section Newsletter since 2009. Mr. Buchanan is a frequent writer and speaker on immigration compliance as well as labor law, wage & hour law and proposed federal legislation. He is a member of American Immigration Lawyers Association (AILA) and serves as the Advocacy Liaison of the Mid-South Chapter of AILA. Mr. Buchanan also serves on the Board of Directors for the Nashville International Center for Empowerment (NICE) and is an associate member of the Mid-Tennessee Chapter of the Associated Builders & Contractors. Mr. Buchanan is admitted to practice in Tennessee, Florida, and Arkansas, before the U.S. Court of Appeals for the Fifth, Sixth, Eighth, and D.C. Circuits and the U.S. District Courts for the Middle District of Tennessee and the Eastern and Western Districts of Arkansas.

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