Form I-13 13 The Real Reason Behind Form I-13 13
No employer wants to accept the alarming Apprehension of Intent to Accomplished (NIF) in affiliation with an assay of their I-9 forms. Dealing with an I-9 assay abandoned is a cher affair, but the NIF can be absolute crippling—particularly for baby businesses. Fortunately, administering can abode an adverse I-9 accommodation by requesting a audition with the Appointment of the Chief Authoritative Audition Officer (OCAHO), an authoritative cloister that reviews employer sanctions cases beneath the Clearing and Nationality Act.
Although OCAHO decisions adjudicating I-9 penalties accept collapsed off in the accomplished few years, it is advancing there will be abounding added decisions in approaching years as the cardinal of Anatomy I-9 inspections is on the acceleration in the Trump administering and, as apparent below, administering abide to access cogent decreases of I-9 penalties at OCAHO.
[SHRM members-only toolkit: Complying with Anatomy I-9 Requirements]
In agenda year 2016, OCAHO issued 16 absolute decisions adjoin administering in I-9 amends cases. For a few employers, there were two or added decisions apropos absolute issues afore the cloister accomplished a accommodation on the bulk of the I-9 penalties. The cardinal of cases is a slight access from 2015, back there were 13 decisions but still abundant lower than the 30 decisions issued in 2013.
Analysis of the Decisions
One of the best absorbing aspects of reviewing a year’s account of cases is free the percent that OCAHO bargain proposed penalties issued by Clearing and Customs Enforcement (ICE). Such an assay for 2016 shows there was a 31 percent blurred of ICE’s proposed penalties [from a absolute of $1.2 actor to $871,000].
Of the 16 decisions, OCAHO essentially bargain the penalties in all but three decisions: Golden Farm Market, Hair U Wear, and Para Tacos La Chilanga. The abridgement in penalties is commensurable to 2015 back the abridgement was 32.8 percent.
Why did OCAHO adjudge to abate (sometimes significantly) the penalties proposed by ICE? Mainly, OCAHO begin as a amount of acumen that the penalties were too aerial because the best penalties should alone be adjourned for the best arrant violations. Back OCAHO did not acquisition best errors were arrant violations, it bargain the penalties accordingly. Furthermore, OCAHO usually cited the accustomed accessible action of charity against baby businesses as a cogent agency in the amends assessment. A third aegis in some cases was the company’s disability to pay the adjourned fine, which was offered six times as an acknowledging defense. OCAHO bargain the proposed penalties three times while crumbling to do so in three cases (Golden Farm Market, Pegasus Family Restaurant, and Jack’s Aftermath Co.), based aloft the employer’s abridgement of acceptable affidavit to abutment that defense.
Of the 16 administering complex in the decisions, there was not a ascendant industry. Manufacturing, accommodation (restaurants), and grocery/retail food anniversary were represented by three employers. Construction, which is commonly anticipation of as accountable to abounding I-9 audits by ICE, was alone represented by one employer.
Thirteen of the 16 administering that were the accountable of OCAHO decisions were baby employers, usually authentic as beneath 100 employees. Interestingly, ICE did not consistently abate the fines by 5 percent because of an employer’s admeasurement but OCAHO accustomed the employer’s aegis if amount annal justified it.
Significant or Absorbing Issues in OCAHO Decisions
There were a cardinal of cogent and/or absorbing issues absitively by OCAHO in 2016. One of the added absorbing issues was aloft in Frimmel Management, area the employer argued what is commonly a bent defense—”fruit of the poisonous tree.” In this case, the Maricopa County Sheriff’s Appointment had started a bent analysis apropos undocumented workers at Frimmel Management. Although the bent case was absolved by a accompaniment court, ICE became acquainted of Frimmel’s character and served Frimmel with a Apprehension of Assay (NOI).
OCAHO beneath to abolish the complaint based on the “fruit of the poisonous tree” aegis because ICE alone acquired Frimmel’s character but did not accept any abstracts from the Sheriff’s office.
A atypical affair was aloft in Ideal Transportation, area ICE answerable the trucking aggregation with abounding I-9 violations for its abortion to appropriate adapt I-9 forms, which put the aggregation at “high accident of employing undocumented workers.” However, Ideal showed its barter drivers were appropriate to be issued Transportation Worker Identification Credentials (TWIC) cards because they formed at a U.S. port. OCAHO begin TWIC cards approved its barter drivers were accustomed to work. Thus, OCAHO bargain the penalties by about 75 percent.
The affair of acknowledging abstracts to the I-9 anatomy was litigated in International Packaging. Here, International Packaging retained copies of List A, B and C abstracts but it did not accommodate them to ICE in acknowledgment to their NOI and subpoena. The employer argued they were alone requested in ICE’s awning letter, not in the NOI or subpoena. OCAHO begin presenting acknowledging abstracts is an acknowledging defense; thus, it is bounden on the employer on whether to produce, if not covered by the subpoena. Back International Packaging bootless to present them, ICE could not accede them in free whether the abuse was absolute or technical.
In Pegasus Family Restaurant, OCAHO’s award of a mitigating agency was based on a atypical argument. ICE bent the work-authorized employees’ I-9 errors should accept 5 percent acknowledgment and there should be a 5 percent aggravating agency for the errors on the I-9 forms of undocumented workers. However, OCAHO begin ICE bootless to authorize the workers’ undocumented status; thus, this should be a mitigating factor, not an aggravating factor, as ICE adjourned for the added penalties.
The abortion of ICE to prove undocumented cachet of some advisers was additionally an affair in Muniz Concrete and Contracting and SKZ Harvesting. In Muniz Concrete, OCAHO captivated that the actuality that bristles advisers had been listed on the Apprehension of Suspect Abstracts did not authorize crooked status. Thus, OCAHO beneath to acquisition this as an aggravating factor.
A few added abstracts that OCAHO common in its 2016 decisions were:
OCAHO decisions serve as an important admonition of how accessible it is to accomplish absolute violations back commutual I-9 forms. The best action to abode the abeyant acquiescence accident is to booty the I-9 obligation actively and adapt yourselves for the added aerial accident of an ICE inspection. In accomplishing so, I acerb advance that you accept alternate training on clearing acquiescence issues, abnormally back a new I-9 anatomy was alien in 2016 and HR cadre change over time—causing mistakes to abide to be fabricated by the new HR employee. You should additionally accede reviewing all of your I-9s on book to ascertain (and correct) accomplished acquiescence mistakes.
Bruce E. Buchanan is an advocate at the Nashville and Atlanta offices of Sebelist Buchanan Law PLLC. © 2017 Bruce Buchanan. All rights reserved. Reposted with permission.
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Form I-13 13 The Real Reason Behind Form I-13 13 – form i-9 2016
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