By: Bruce Buchanan, Sebelist Buchanan Law



In United States v. Eriksmoen Cottages, Ltd., 14 OCAHO no. 1355 (May 1, 2020), OCAHO found late filed Form I-9 were not technical violations; therefore, the good faith exception did not apply.
Immigration and Customs Enforcement (ICE) served a Notice of Inspection (NOI) on the company on July 16, 2018, demanding production of all Forms I-9 for current employees and terminated employees (since January 1, 2018) by July 19, 2018. Eriksmoen Cottages submitted some Forms I-9 on July 19. Two weeks later, Eriksmoen Cottages realized it failed to supply the office staff’s six Form I-9s and supplied those additional Forms I-9.

ICE issued a Complaint alleging 30 Form I-9 violations and sought $36,900 in penalties. The Complaint alleged six violations for failure to produce I-9 forms and 24 violations for failure to properly ensure completion of Section 1 and/or failure to properly complete Section 2 or 3 Forms I-9.

Concerning the failure to timely present I-9 forms for the six office staff employees, Eriksmoen Cottages argued there was a “material dispute” as to whether the NOI covered office staff. The NOI requested Forms I-9 for “all current employees and for former employees terminated on or after January 1, 2018.” Thus, OCAHO found there was no language in the NOI exempting office staff’s Forms I-9.

Secondly, Eriksmoen Cottages asserts the six allegations involved timeliness and constituted technical verification failures for which the good faith exception should apply. OCAHO quickly dispensed with this argument as follows:
“[T]imeliness failures”…. only apply to the timeliness of completing Sections 1 or 2 of the Form I-9…. The failure to timely present an I-9 is a different matter from the failure to timely complete section 1 and/or section 2 of an I–9…. [T]he regulations state that ‘[a]ny refusal or delay in presentation of the Forms I-9 for inspection is a violation of the retention requirements as set forth in section 274A(b)(3) of the Act.’ 8 C.F.R. § 274a.2(b)(2)(ii). According to OCAHO case law, the employer cannot avoid liability by submitting I-9 forms at some later point in the process, absent an extension of time. See e.g. United States v. Golden Employment Group, Inc., 12 OCAHO no. 1274, 5 (2016).
The remaining allegations were found as violations because one or more substantive errors were found on the 24 submitted I-9 forms. Most of these violations show Eriksmoen Cottages failed, on a regular basis, to reverify employment authorization for many of its employees as it was required to. If an individual’s employment authorization expires, the employer must reverify on Section 3 of the Form I-9 that the individual is still authorized to work in the United States. This must occur no later than the date that the individual’s employment authorization expires.
OCAHO decided to bifurcate the issues of liability and penalties due to the coronavirus pandemic. Thus, the penalties are left to a later proceeding.

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.