The Office of the Chief Administrative Hearing Officer (OCAHO), which presides over hearings under the Immigration Reform and Control Act of 1986 and the Immigration Act of 1990, recently upheld fines against two employers that were missing I-9 forms.
Federal law requires employers to complete I-9 forms for all new employees and then to retain those forms for the duration of employment and for a period of time after termination. Recently, Immigration and Customs Enforcement (ICE) fined two employers who were unable to produce all required I-9 forms during an audit.
ICE fined Ice Castles Daycare $55,352 for missing I-9 forms. Although the company had a fairly small number of workers at any given time, due to a high level of employee turnover, it should have had I-9 forms for 74 employees. It did not have I-9 forms for any of these employees. ICE did not find that the company had employed anyone illegally, but fined the company anyway.
ICE also fined Colorado’s Pegasus Restaurant $132,000 for failing to complete I-9 forms for the 134 individuals it employed during a three-year period. Even worse, ICE discovered that four employees were not legally authorized to work (these employees were no longer employed at the time of the ICE audit).
Both companies appealed to the OCAHO for elimination or reduction of the fines. The judge refused to eliminate the fines, but did reduce the amounts. Citing the relatively small size of each employer and their expected inability to pay the original penalties assessed by ICE, the OCAHO reduced Ice Castle’s fine to $18,200 ($250 for each missing I-9) and Pegasus’s fine to $49,427 ($350 per employee for the paperwork violations and $982 for each of the four unauthorized workers). In each case, the OCAHO noted the reduced amounts were sufficiently high to serve as a deterrent without putting the employer out of business.
“Every employer makes mistakes during the I-9 process, but those mistakes must be corrected as soon as possible,” says Ryan Adair, MSEC’s Manager of Immigration Services. “It is resoundingly clear that employers cannot escape fines for missing I-9s.”