Bloggings on I-9 E-Verify Immigration Compliance

Bruce Buchanan

Employer Fined over $15,000 for Failure to Timely Prepare I-9 Forms; by Bruc Buchanan, Siskind Susser

How much is your company willing to pay Immigration and Customs Enforcement (ICE)? The Office of the Chief Administrative Hearing Officer (OCAHO) issued a decision, United States v. Anodizing Industries, Inc., wherein the fines sought by ICE were over $25,000 and ultimately reduced to $15,600.

Anodizing Industries is a small business, 26 employees, which operates a metal-finishing factory in Los Angeles, California. After ICE issued a Notice of Inspection (NOI) on July 30, 2010, Anodizing Industries provided their employees’ I-9 forms. Unfortunately for Anodizing Industries, many of the I-9 forms presentedwere dated August 12, 2010 in Section 2 –a full 13 days after the NOI was served, and months or years after some of the employees were hired. Furthermore, at least 11 of the I-9 forms were undated by the employee.  Anodizing Industries argued these were technical, not substantive, errors for which the “good faith” defense should apply so that it should be given 10 days to correct the deficiencies.

OCAHO disagreed with Anodizing Industries’ argument. The case law is clear that “failure to prepare an I-9 in a timely fashion… is not only a substantive violation but also a serious one, because an employee could potentially be unauthorized for employment during the entire time his or her eligibility remains unverified,” citing previous OCAHO decisions. Furthermore, OCAHO stated “the longer an employer delays in preparing an I-9 form, the more serious is the violation.” OCAHO pointed to former employees’ I-9 forms, which were not completed for between two and five years. At least one I-9 form was not completed until 22 years after the fact.

OCAHO sought a baseline penalty of $935 and aggravated the penalties by 5%, apparently based upon the seriousness of the violations and the presence of unauthorized workers, but mitigated by 5% for the small size of the employer. Despite the seriousness of the violations, OCAHO in its discretion found the penalties should be adjusted to the “upper mid-range” and assessed at $600 per violation for a total of $15,600.

The lesson learned here is prepare an I-9 form immediately at the time of hire and if you realized you forgot to do so, then do so as soon as possible. The longer you wait the worse.

Macy's Settles OSC case by Paying $275,000; by Bruce Buchanan, Siskind Susser

The Office of Special Counsel (OSC) for Immigration-Related Unfair Labor Practices, which is within the Department of Justice, has reached an agreement with Macy’s resolving allegations that the company violated the anti-discrimination provision of the Immigration and Nationality Act. 

The investigation was initiated based on several calls to the OSC’s worker hotline regarding potential immigration-related unfair employment practices. The investigation determined Macy’s engaged in unfair documentary practices against work-authorized immigrant employees during the employment eligibility reverification process and some employees suffered economic harm through lost work or seniority as a result. The INA’s anti-discrimination provision prohibits employers from treating workers differently in the employment eligibility verification or reverification process by demanding more or different documents, or by limiting the worker’s choice of documents, based on an individual’s immigration status or national origin.

According to the settlement agreement, Macy’s agreed to revise its employment eligibility reverification policies and procedures and to provide training to its human resources personnel across the country on the INA’s anti-discrimination provision.  Macy’s also agreed to pay $175,000 in civil penalties to the United States, and to create a $100,000 back pay fund to compensate any individuals who suffered lost wages or loss of seniority as a result of its practices. 

This is one of the larger fines recently agreed to by the OSC and is similar to other OSC settlements – employers requiring too much in the revertification process. Employers must be vigilant in their immigration compliance or the OSC and/or Immigration and Customs Enforcement will come knocking on your door and assesess large penalties.

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 *** 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.

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.