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The Impact of OCAHO Decisions on Employers

OCAHO is issuing a record number of decisions (on pace to triple their decisions concerning alleged I-9 form violations from 2012) and Immigration and Customs Enforcement (ICE) is conducting a record number of Notice of Inspections (NOI). Employers should know these enforcement activities will, at some point, impact their own I-9 compliance and recordkeeping. More NOIs means more Notices of Intent to Fine (NIF) are issued. If employers opt to contest the NIFs, then the matter must be set for litigation. A little unknown fact though, is that ICE can realistically only afford to litigate a limited number of cases per year. For employers, this opens up the opportunities to negotiate the penalty amounts with ICE though ICE would not readily admit to this. With the severe reductions in penalties that OCAHO has provided employers recently, ICE may be at a disadvantage when it comes to negotiations. Other methods for reducing penalties include reviewing violations that occurred beyond the five-year statute of limitations; violations that are technical, not substantive, errors; instances where an employee is hired before November 7, 1986 and does not require a Form I-9; instances where an employee was hired but worked less than three days and the alleged violation concerned Section 2; and instances where the individual was not an employee. OCAHO has also found that an employer’s poor financial condition, ability to pay and the disproportionately large penalties have all been important factors in reducing penalties.

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