By: Bruce Buchanan, Sebelist Buchanan Law

In U.S. v. International Packaging, Inc., 12 OCAHO no. 1275 (2016), the Office of Chief Administrative Hearing Officer (OCAHO) found International Packaging, Inc. (IPI) committed 94 of the 95 Form I-9 violations alleged. In so doing, OCAHO faced an interesting issue - whether the employer had to provide supporting documents with the I-9 forms when the I-9 forms were subpoenaed but supporting documentation was requested in the cover letter, not the subpoena.

Notice of Inspection and NIF

IPI was served with a Notice of Inspection and subpoena on February 17, 2011. On February 23, 2011, IPI produced some but not all of its I-9 forms, inadvertently failing to produce 21 Form I-9s. IPI contends it had an agreement to produce the I-9 forms by March 2 but concedes it did not provide the 21 Form I-9s at that time either.

ICE states it did not even learn of the existence of more employees until it examined IPI’s payroll records. After ICE requested nine of the 21 Form I-9s – all current employees – IPI complied.

On August 16, 2011, ICE issued Notice of Intent to Fine (NIF). ICE alleged in Count I that IPI failed to produce 21 Form I-9s, and in Count II alleged that on 67 occasions, the company failed to enter certain data, such as document title, identification number or expiration date, in Lists A, B or C of Section 2. IPI failed to present any documentation attached to the I-9 forms. Thus, ICE asserts these are substantive errors, not technical ones, citing the Virtue Memorandum. IPI asserts that the supporting documentation was requested in a cover letter, not a subpoena; thus, ICE had “insufficient process” to allege these violations where the documentation, if presented, would have established these errors were technical.

Supporting Documentation

IPI cites to 8 C.F.R. § 274a.2(b)(3), which does not require the supporting documentation to be kept with the I-9 forms. It asserts it offered to provide ICE with the verification documents and ICE should have accepted them and given IPI 10 days to cure the technical violations.

Furthermore, IPI’s attorney, DeAnne Hilgers, states she was told by ICE agents at a Federal Bar Association conference in Chicago that “requesting supporting documents in a cover letter is not consistent with standard ICE practice.” IPI stated it did not provide the supporting documentation for the I-9 forms because the subpoena did not request such, and an attorney had previously told them only to provide what was requested. However, the cover letter clearly requested any supporting documentation. ICE responded “nothing in the statute or regulations requires the issuance of a subpoena as the only means of obtaining documents from an employer.”

OCAHO’s Decision

OCAHO sided with ICE on this argument and found nothing in the Virtue Memorandum requires an employer to copy and provide documents; rather, it is simply an affirmative defense. OCAHO found there was no conflict between 8 C.F.R. § 1324a.(b)(3) and the Virtue Memorandum. In this case, the employer did not provide the supporting documentation with the I-9 forms to ICE; therefore, the errors in Lists A, B and C were substantive. Furthermore, OCAHO found ICE is not required to ask for any supporting documentation; it is up to the employer to provide such and raise as an affirmative defense.

Due to these findings, OCAHO found all 67 allegations to be violations in Count II. OCAHO set a later filing date as to the parties’ arguments on the amount of penalties.


Although an employer has an affirmative defense to some errors in Section 2, Lists A, B and C so that the errors will be viewed as technical and can be cured without a penalty, it is incumbent on the employer to provide the supporting documentation with the I-9 forms, regardless of whether they were requested in a subpoena, Notice of Inspection, or cover letter, or not requested at all.