OCAHO Drastically Reduces ICE Penalties from 2012-2014

Penalties for I-9 violations sought by U.S. Immigration and Customs Enforcement (ICE) during the three year period of 2012-2014 were reduced by an average of more than 40% as a result of decisions issued by the Office of Chief Administrative Hearing Officer (OCAHO). Although ICE sought $1,554,883 in penalties in 2014, OCAHO assessed $1,006,925 for an average reduction of 35.25%. This reduction was lower than the two prior years of 41.5% in 2012 and 46.5% in 2013. However, this lower average reduction of penalties was the result of ICE’s second largest proposed penalty of over $300,000 was not reduced by OCAHO. Without this decision, the percentage is adjusted to 44.74% which is consistent with the percentage in 2013.

OCAHO cited the main reason for reducing penalties in at least 10 cases was the penalties were “excessive” and “unduly harsh”. Furthermore, OCAHO stated “the Small Business Regulatory Enforcement Fairness Act as a significant factor in finding the penalties excessive in seven cases.”

Other factors in lowering the penalties were inability to pay, the “principle of proportionality”, and that company had ceased to exist.

According to court records, 13 out of 17 cases in 2014 involved the employer failing to prepare or timely prepare, I-9 forms for the employees. OCAHO stated that this is the most common error committed by employers in cases litigated. In addition, court records show the following common clerical errors that resulted in huge ICE fines:

  • Failure to ensure the status was checked in Section 1
  • Failure to ensure Section 1 was signed
  • Failure to ensure the alien number was provided
  • Failure of the employer to sign Section 2
  • Failure to provide a document number and/or issuing authority in Section 2
  • Failure to list documents from List B and/or C

Employers want to know which industries are targeted for inspection by ICE. Although the OCAHO decisions only include cases actually litigated, those cases involve the following industries:

  • Hospitality – 5 cases
  • Food Preparation/Manufacturing – 3 cases
  • Construction – 3 cases
  • Health Care – 2 cases
  • Horse Racing – 2 cases
  • Retail – 1 case
  • Service – 1 case

A minor mistake, a careless oversight or a small violation may not seem important, but when it comes to completing the I-9 form, these trivial errors have cost employers millions of dollars in fines, penalties, judgments, lawyer fees, and lost time. As a Consumer Reporting Agency (CRA), GSN understands, follows and advises our clients on compliance and regulations while establishing a legally defensible process to ensure that even the small errors won’t cost you big bucks. Call GSN (866.792.9808) today to learn more about our Background Screening Solutions customized for your business and industry.

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