By: Bruce Buchanan, Sebelist Buchanan Law

After issuing only a handful of decision in 2018, OCAHO issued its first in 2019 – U.S. v. Executive Cleaning Services of Long Island Ltd., 13 OCAHO no. 1314. (It is dated December 21, 2018 but wasn’t released until January 31, 2019). There were no startling issues decided in this case but it is nice to see OCAHO finally start issuing decisions again. OCAHO has been without any Administrative Law Judges for over a year. T appears this ALJ is just on detail and not permanently at OCAHO.

In a prior decision, OCAHO had found Executive Cleaning Services liable for 25 substantive I-9 violations. All 25 violations concerned Respondent’s failure to sign the employer attestation in Section 2 of the I-9 form. OCAHO did not determine the penalties until this decision.

The decision analyzed the five statutory factors for mitigating or aggravating a penalty: (1) size of the business; (2) employer’s good faith/ bad faith, (3) seriousness of the violations, (4) whether or not any unauthorized workers were hired, and (5) any history of previous violations. ICE mitigated by 5% the penalty of Executive Cleaning Services due to its small workforce – under 100 employees.

Concerning the good faith/bad faith factor, OCAHO found although the employer “had a significantly poor rate of compliance”, this does not warrant a finding of bad faith. Therefore, OCAHO agreed with ICE that the good faith factor is neutral. Concerning seriousness of the violations, ICE argued the violations were serious but did not seek to aggravate the penalties. ICE and OCAHO aggravated by 5% the penalty related to employment of an undocumented worker. The lack of prior violations was treated as a neutral factor.

Executive Cleaning Services argued it was no longer in business; thus, paying the penalties would amount to a financial hardship. Since it presented no supporting documentation, OCAHO declined to reduce the penalties.

ICE charged each violation at $1901 because all were continuing violations: thus, all occurred after November 2, 2015, when the penalties increased from $935 to $1901 per I-9 violation (with a maximum of one violation per I-9 form).
ICE charged each violation at $1901, minus 5% for small size of employer, because all were continuing violations; thus, all occurred after November 2, 1015 when penalties increased from $935 to $1901 per I-9 violation. OCAHO determined 24 violations should be assessed at $1,768.90 each (it is unclear how this number was arrived at as a 5% mitigation of $1901 equals $1854.50). One violation, the hiring of an undocumented worker, was aggravated and the penalty assessed at $1,862. Overall, OCAHO found Executive Cleaning Services owes $44,315.60 in civil penalties for the 25 violations.

If you want to know more information on issues related to employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at