SERIES: Lessons Learned from OCAHO’s 2013 Decisions—U.S. v. Super 8

OCAHO (Office of the Chief Administrative Hearing Officer) is responsible for the general supervision and management of Administrative Law Judges who preside over hearings related to the Immigration and Nationality Act (INA). OCAHO was a particularly active throughout 2013 issuing decisions on I-9 related cases. (This is no surprise considering the increasing number of federal I-9 audits.)

One of these cases was U.S. v. Super 8 Motel and Villella Italian Restaurant, 10 OCAHO no. 1191 (2013). Super 8 sheds light on the OCAHO’s current construction of OCAHO case law, INA, and the Virtue Memorandum (an INS memorandum issued by Paul W. Virtue that addresses I-9 compliance). Its dicta and holding are particularly interesting to any employer who wants to ensure I-9 compliance.

First, OCAHO reinforces its established belief that attaching photographs of documents to an incomplete Form I-9 does not constitute substantial compliance. In several instances, a Super 8 employee failed to complete Section 1 and/or Super 8 erroneously completed Section 2. OCAHO rejected Super 8’s argument that those errors were cured by the attachment of photocopied documents.

Second, OCAHO emphasized that the employer is liable for the failure to ensure employees properly complete Section 1. Two of the most serious violations found in Section 1 are (1) failure to check a status box and (2) failure of the employee to sign and date Section 1. OCAHO found that both of these failures constitute serious substantive violations because an employee’s failure to attest to his or her status defeats the very purpose of the verification process. Super 8’s failure to have the employee correct these mistakes constituted as violations by Super 8 itself.

Third, OCAHO may dismiss alleged violations where ICE contradicts its own guidelines even though OCAHO itself is not bound by those guidelines. With regards to one of the Counts in Super 8, ICE merely stated that Super 8 failed to correct technical or procedural errors because it did not initial and date each correction, and because it backdated 22 of the corrections. ICE’s assertions contradict its own guidelines in the Virtue Memorandum, which states that failure to date and sign a correction to a technical or procedural errors does not alone convert the error into a substantive violation. OCAHO dismissed this Count because ICE failed to cite legal authority for its assertion and failed to reconcile its assertion with the language in the Virtue Memorandum.

Ultimately in Super 8, OCAHO reduced the amount of fines, citing that most of the statutory penalty factors are favorable to Super 8 as (1) it is a small business with no actually unauthorized workers; (2) it did not act in bad faith; and (3) it has no history of previous violations.

All employers are encouraged to take extra precaution to ensure I-9 compliance. The best approach includes several components: (1) proper I-9 education of HR personnel; (2) retaining I-9 specialist counsel; and (3) pre-emptively taking steps to set up a good faith defense.

(This post is part of a larger series on 2013 OCAHO decisions. Please check back later for posts on other decisions.)