By Bruce E. Buchanan, Siskind Susser

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OCAHO surprised a lot of people this month when it dismissed 337 out of 381 alleged I-9 violations in U.S. v. Foothill Packing. In doing so, Immigration and Customs Enforcement’s (ICE) proposed penalties were reduced by $149,000.

Foothill is a fruit and vegetable packing company with an office in Somerton, Arizona. In March 2012, ICE served the company with a Notice of Inspection and subpoena. It is undisputed that the original auditor for the inspection only requested the I-9 forms without documentation. A later ICE auditor testified he requested supporting documentation. Interestingly, neither party produced the subpoena to OCAHO.

Foothill primarily hired its employees through the H-2A nonimmigrant temporary agricultural visa program and obtained the employees’ Mexican passports, which included their I-94 and H-2A visa. Foothill management repeatedly offered these documents to ICE auditors, but ICE refused them. At the end of the investigation, ICE cited Foothill with 337 violations for failing to record the pertinent foreign passport information in Section 2 of the I-9 forms or present copies of the passports.

If Foothill had provided the I-94s and H-2A visas, ICE said these violations would have been treated as technical violations. However, ICE noted that copying these documents still did not relieve Foothill from its responsibility to fully complete the I-9 forms. Foothill asserted that, according to the Virtue Memorandum, the “failure to enter the foreign passport information is a technical violation if a copy of the document is presented at inspection”. OCAHO found that the Virtue Memorandum actually states the omission of a document number or expiration date in Section 2 is a technical violation, if a legible copy of the document is retained and presented. Despite this finding by OCAHO, it determined Foothill should not be found in violation for these I-9s because of the ICE auditor’s statements that supporting documentation was not needed.

OCAHO further found that Foothill made “diligent efforts at the outset of the investigation to provide copies of the Mexican passports” and cannot be liable for failure to present documents that the government refused to accept. 337 of the alleged violations were dismissed.

Knowingly Employing an Undocumented Worker

On a separate issue, OCAHO found Foothill knowingly employed an unauthorized worker based upon the fact the employee was hired in June 2010 but presented an employment authorization card which expired on August 5, 2003. Because Foothill chose to accept an expired document without making further inquiry, the company had actual, or at least, constructive knowledge of the employee’s unauthorized status. OCAHO increased ICE’s proposed penalty of $375 to $2,200 (which is still below the maximum of $3,200 for a first offense).

Calculation of Fines

As to the remaining alleged violations, OCAHO found Foothill committed 44 substantive violations, ICE sought a penalty of $440 per violation which OCAHO found to be in the midrange of permissible penalties. Thus, OCAHO assessed a penalty of $19,360 for the 44 substantive violations. Together with the $2,200 penalty for knowingly hiring one unauthorized worker, Foothill’s total penalty came to $21,560.

The Takeaway

This case provides a unique example where an employer was able to seize on ICE auditors’ directions to substantially reduce its liability. It highlights the importance of compliance attorneys discussing with their client any conversations they may have had with ICE when the subpoena was served.

A copy of the OCAHO decision is available here.
Cite as United States v. Foothill Packing, Inc., 11 OCAHO no. 1240 (2015).