By: Bruce Buchanan, Sebelist Buchanan Law

In United States v. R2M2 Rebar & Stressing, Inc., 14 OCAHO no. 1357 (Mar. 8, 2020), OCAHO found the employer’s statute of limitations defense was inapplicable where no I-9 forms were ever started or completed for 22 employees.

Immigration and Customs Enforcement (ICE) served a Notice of Inspection (NOI) on the company on February 21, 2018, demanding production of all Forms I-9. ICE issued a Complaint alleging 177 Form I-9 violations and sought $358,423 in penalties.

Count I of the Complaint, which is the issue in this decision, alleged 90 violations for failure to prepare and/or produce I-9 forms. R2M2 Rebar argued it did not need to produce 22 of the 90 Forms I-9 because those employees were hired more than five years before the issuance of the Complaint. It asserted that these were timeliness allegations and since more than 5 years had expired, 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 four days after the employee’s first day of employment and ends five years later.)

The defect in this defense is the Complaint did not allege that Respondent failed to timely complete the 22 I-9 forms. Instead, the Complaint alleged R2M2 Rebar failed to complete and/or present the I-9 forms. When an employer fails to present and/or fails to prepare an I-9, it is not a timeliness violation since the employer never prepared and/or never presented the Form I-9. Longstanding OCAHO caselaw has held the duty to prepare an I-9 does not terminate on the third day after hire, rather ‘the failure to prepare an I-9 for an employee continues until such time as the form is actually completed, and thereafter until the retention period expires.”

As such, the violations at issue are continuing violations as are most paperwork violations, including violations for failing to prepare a Form I-9. The violations continue until corrected or the retention period has expired. R2M2 Rebar did not provide any evidence that it corrected the alleged 22 I-9 forms. Thus, it failed to show the statute of limitations applies to these violations.

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