By: Bruce Buchanan, Sebelist Buchanan Law



In United States v. Visiontron Corp., 13 OCAHO no. 1348 (Mar. 17, 2020), OCAHO reduced the company’s penalties by more than 50% - from $101,703 to $47,850, despite finding most of ICE’s allegations to be meritorious.

Immigration and Customs Enforcement (ICE) served a Notice of Inspection (NOI) on the company on April 4, 2018, demanding production of all Forms I-9 from October 1, 2016 to present - March 28, 2018. Visiontron submitted a number of Forms I-9.

ICE issued a Complaint alleging 56 violations (there were only 59 current employees) of 8 U.S.C. § 1324a (I-9 violations) and sought $101,703 in penalties. The complaint alleged 9 violations for failure to prepare and/or produce I-9 forms; 8 violations for failure to timely prepare I-9 forms; and 39 violations for failure to properly ensure completion and/or failure to properly complete I-9 forms.

Concerning the failure to prepare I-9 forms for 9 employees, Visiontron argued it did not need to produce 4 Forms I-9 because the 4 employees were hired in 2018 and the NOI did not demand the quarterly reports for 2018. As OCAHO pointed out this argument was meritless because the NOI demanded I-9 forms through March 28, 2018.

OCAHO agreed with Visiontron that it was not liable for failure to produce the I-9 forms for the 3 owners. It is well-established, though often mistakenly pled by ICE, owners with control over the operations are not required to complete an I-9 form. See United States v. Intelli Transport Services, 13 OCAHO no. 1319, p. 4 (2008).

OCAHO agreed with Visiontron that it was not liable for failure to produce 2 Forms I-9 because the retention period, three years from the date of hire or 1 year from the date of discharge, whichever is longer, had expired.

Additionally, 4 allegations involved timelessness and more than 5 years had expired; thus, the statute of limitations prevented a finding of violations. (Since there is not a way to “cure” a timeliness violation, there is a five-year statute of limitations on timeliness violations - meaning the statute begins to run one or four days after the employee’s first day of employment and ends five years later.)

The remaining allegations were found as violations because one or more substantive errors were found on the submitted I-9 forms.

Concerning the statutory factors, ICE aggravated by 5% for seriousness of the violations and mitigated by 5% due to the small size of the business. It also aggravated by 5% for six violations related to undocumented workers. The other statutory factors, good faith/bad faith and no history of I-9 violations, were treated as neutral. OCAHO agreed with ICE’s analysis on the five statutory factors.

In determining the penalties to be assessed, OCAHO noted ICE’s requested penalties of $1901 per violation were more than 80% of the maximum, which should only be reserved for the most egregious violations. OCAHO stated these violations were not the most egregious and ICE’s proposed penalties was “disproportionate to the Form I-9 violations and mitigating factors.” Thus, OCAHO lowered the penalties as follows: $645 for violations occurring before November 2, 2015 and $1290 for the ones occurring from November 2, 2015 forward. Overall, OCAHO assessed penalties of $47,850.

If you want to know more information on I-9 compliance and related issues, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.