Employers who seek administrative review of enforcement fines sought by Immigration Customs and Enforcement (“ICE”) related to U.S. Citizenship & Immigration Services (“USCIS”) Form I-9 violations may petition relief from such ICE allegations before the Office of the Chief Administrative Hearing Officer (OCAHO), a division of the U.S. Department of Justice. In previous years, the amount of published decisions issued by OCAHO has been relatively small, recently, it has ticked upward. The increase in published decisions, as well as the topics covered in those decision, provide insight into increasing Government scrutiny on I-9 compliance issues and the potential risks associated with such heightened scrutiny. Furthermore, as we noted last year, I-9 scrutiny is on the rise, and the increase in published decisions may only be the latest step in that campaign.

By comparison to 2012, where OCAHO only issued 11 published decisions, in 2013, OCAHO published 38 such decisions, 8 of which concerned discrimination and document abuse where employers demanded more proof of employment eligibility than that mandated by law and/or singled out particular ethnicities for greater scrutiny. The 30 remaining cases concerned Form I-9 violations including technical errors, constructive and/or actual knowledge of unauthorized employment and substantive inconsistency in data recorded on Form I-9 and actual identification documents presented by employees. In each of these 30 cases, employers not only contested the ICE allegations, but also sought reduction in the ICE-assessed fines. In 28 such cases, OCAHO reduced the penalties actually sought by ICE for a myriad of reasons including the precarious financial condition of the employing companies in question, the relative size of the employer with smaller employers gaining greater relief from ICE-imposed fines [normally a 5% mitigating factor on the ICE-imposed fine] and OCAHO findings that ICE’s financial penalties were unduly punitive.

Reduction in such fines, however, is not a given. In February 2014, OCAHO published a decision validating an ICE-assessed penalty of $77,000 against an Indian Cuisine restaurant where seventy one (71) I-9 Form violations were assessed at the statutory maximum of $1,100 per violation. The OCAHO reasoned no penalty mitigation was in order when the employer evidenced bad faith by systematically paying unauthorized employees in cash, off the books, and failing to report such wages to the Internal Revenue Service and state taxing authorities. Nowhere to be found in the 38 published decisions was OCAHO amenable to employer defenses that asserted unawareness of even the existence of an I-9 Form requirement nor to any defense that the errors on the I-9 Forms were technical, not substantive. Such technical errors are afforded by IRCA, a ten day curative provision. In 2013, however, OCAHO repeatedly found such defenses lacked validity given nearly three decades of education and enforcement
concerning IRCA’ s employment eligibility mandates.

The 2013 OCAHO published decisions also highlight ICE’s touted enforcement targets as of 2009. The greatest number of 2013 OCAHO published cases concerned the food service industry – including restaurants, food processors, and those involved in agriculture. Second highest were retail and distribution companies with manufacturing and construction companies following. Additionally, the majority of such cases evidenced multi-lateral cooperation and investigation by multiple federal enforcement agencies including ICE, state Departments of Labor, and the Alien Smuggling Unit of U.S. Customs and Border Protection, a previously uncommon level of inter-agency cooperation.

Given the clearly heightened focus on Form I-9 compliance issues, it might be wise to have knowledgeable counsel review your company’s I-9 documentation to assess liability for possible compliance violations, or for training on I-9 compliance issues.