By Bruce Buchanan, Sebelist Buchanan Law
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The Office of Chief Administrative Hearing Officer (OCAHO) issued another decision arising case out of Buffalo, New York wherein it upheld most of Immigration and Customs Enforcement’s (ICE) proposed fine of $5329.50. See U.S. v. Hair U Wear, LLC, 11 OCAHO no. 1268 (2016). The case is similar to the earlier Buffalo case, Golden Farm Market.

Allegations

Hair U Wear, a very small business, received a Notice of Inspection (NOI) from ICE in January 2014. After not timely preparing four I-9 forms and failing to prepare two forms, a Notice of Intent to Fine was issued. Hair U Wear denied all allegations and did not raise any affirmative defenses.
Of the four allegations related to not timely preparing I-9 forms, each reflected there was no date in either Section 1 or Section 2 after the signatures. Furthermore, all of the I-9 Forms used the March 8, 2013 edition even though the first day of employment for each employee was listed as October 1, 2003, October 1, 2006, April 1, 2008, and April 12, 2012. This is obvious evidence that the I-9 forms were prepared well after the employees were hired.

Appropriate Penalties

ICE asserted the appropriate penalty was $5329.50 based on a 100% error rate – which equals a fine of $935 per violation. ICE mitigated the fine by 10% based on the mitigating factors of a small business and no employment of undocumented workers. It aggravated the penalty by 5% due to the seriousness of the violations. These mitigating and aggravating factors led to a fine assessment of $888.25 per violation.
ICE provided reports reflecting that Hair U Wear reported employing six employees in 2013. Hair U Wear did not dispute this fact. Hair U Wear did not provide I-9 forms for two individuals listed in the reports and conceded it prepared the other four I-9 forms after the NOI.
Concerning the five aggravating / mitigating factors, OCAHO agreed with ICE’s use of three of the five factors, but added a third mitigating factor, lack of prior violations. Concerning the aggravating factor of seriousness, OCAHO cited prior caselaw which states the failure to prepare or timely prepare I-9 forms is a potentially serious violation because the employer has not ensured the individuals are authorized to work without completing the I-9 form. Through the use of these factors, the baseline penalty of $935 was reduced by 10% to $841.50 per violation. Thus, OCAHO found the total penalties should be $4776.50.

Takeaway

As is usually the case, if Hair U Wear had conducted an internal I-9 audit before the NOI, it would have realized it did not have I-9 forms for its employees and sought to resolve the issue. As you can see by this case, even very small employers can face penalties assessed by ICE.