By Bruce Buchanan, Siskind Susser

doj.jpg ice_immigration_customs_enforcement.jpg Speedy_Gonzalez_Construction_Inc.jpg

In U.S. v. Speedy Gonzalez Construction, Inc., the Office of the Chief Administrative Hearing Officer (OCAHO) faced several interesting issues in determining the potential liability of the company. Speedy Gonzalez is a husband-and-wife-owned construction company, located in Glendale, Arizona. After Speedy Gonzalez provided its I-9 forms to Immigration and Customs Enforcement (ICE), it was served with two Notices of Suspect Documents identifying 83 individuals who appeared to be unauthorized for employment.

ICE’s complaint alleged the company failed to prepare and/or present I-9 forms for 101 employees and failed to ensure the proper completion of Section 1 and/or failed to complete Section 2 or 3 of the I-9 forms. There was not a material factual dispute on most of the issues in the Complaint.

For the nine employees who the company failed to ensure proper completion of Section 1 of the I-9 form, the errors involved:

- failure of the employee to sign the I-9 form
;
- failure of the employee to check a status box; and
- failure to record a permanent resident’s alien number.

Speedy Gonzalez raised a number of defenses to assert there were material disputes of fact. One defense was that some former employees worked fewer than three days or never worked for the company. Another defense used by the company was that its use of the E-Verify system for some of those individuals constituted “good faith compliance” and “is equivalent to the examination certification in Section 2.”

In determining whether the failure to complete the I-9 form is excusable based on an employee’s failure to continue employment for more than three days, “the expectations of the parties with respect to the duration of employment, as well as the specific facts and circumstances surrounding the hire, must be evaluated on a case by case basis.”

The facts demonstrated some of these employees may have worked less than three days but their days of employment were spread over four to six days. Thus, OCAHO found these employees were on the payroll for at least three days after hire – meaning the company had an obligation to obtain completed I-9 forms.

However, Speedy Gonzalez prevailed on its claim that four employees were never on its payroll because the Arizona Unemployment Tax and Wage Reports did not reflect any wages paid to these four individuals.

OCAHO rejected the construction company’s defense that its use of E-Verify was equivalent to Section 2 certification. The E-Verify Memorandum of Understanding specifically states the “employer understands that participation in E-Verify does not exempt the employer from the responsibility to complete, retain and make available for inspection Forms I-9 that relate to its employees.” Thus, the company’s use of E-Verify does not excuse its failure to properly complete Section 2 of the I-9 forms and present the forms for inspection.

Speedy Gonzalez was successful in arguing that the husband-and-wife owners did not have to complete I-9 forms. OCAHO has held owners with substantial control over the company do not have to complete an I-9 form. Unfortunately, ICE tends to ignore this case law and continues to allege violations for the failure of owners to prepare I-9 forms.

Lastly, Speedy Gonzalez attempted another defense – arguing that it “recreated” some of the I-9 forms after the NOI when the original I-9 forms were missing. However, it was unsuccessful because OCAHO held the company failed to present “a scintilla of evidence that the original forms ever actually existed.”

OCAHO did not assess any penalties at this time; rather, it ordered ICE to file its penalty request and Speedy Gonzalez to respond to the proposed penalty.

A copy of the OCAHO decision is available here.
Cite as U.S. v. Speedy Gonzalez Construction, Inc., 11 OCAHO no. 1228 (2014)

siskind_susser_logo.jpg ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - www.visalaw.com - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow this author on social media via Facebook and on Twitter @BuchananVisaLaw .