April 12, 2023

An immigration administrative law judge has made a decision involving a New Mexico company and claims from Immigration and Customs Enforcement (ICE). The judge found partial favor in ICE’s claims that the company failed to promptly fill out or complete their employees’ employment eligibility verifications (Form I-9). However, the judge found that ICE could not provide proof for over half of the alleged paperwork violations.

ICE initially filed its complaint against the New Mexico company with the Office of Chief Administrative Hearing Officer (OCAHO) in the U.S. Department of Justice’s Executive Office for Immigration Review. It alleged that the company had not prepared their employees’ Form I-9s promptly, and that they did not properly complete the forms for 36 employees.

An OCAHO administrative law judge concurred with ICE, noting the missing forms for some of the company’s employees. However, the judge also pointed out that ICE did not provide copies of Form I-9 pages listing the employer’s attestation about verifying employees’ eligibility to work.

The judge also commented on the impact of lacking information from the employee’s first day of work or the date that the respondent verified the employee’s eligibility. Without this information, the court could not determine whether the respondent failed to prepare or present the Form I-9s for the affected individuals on time. Therefore, the judge declared that ICE had failed to prove the absence of material as a factual issue concerning the five I-9 forms.

ICE alleged that 25 Form I-9s were missing when it served the New Mexico company with a Notice of Inspection. The agency also claimed that the company failed to fill out some sections of 11 Form I-9s correctly. In response, the judge acknowledged that the New Mexico company did not have 13 forms. 

In addition, he rejected the company’s claim that it acted in good faith by not backdating the documents. According to the judge, companies may use that defense for procedural or technical violations, not substantive violations. The judge also agreed with ICE that the New Mexico company did not correctly complete some sections of the Form I-9s for three employees. 

For example, one employee checked the box indicating their status as a lawful permanent resident without listing their alien registration number in the correct section. For two other employees, the company failed to ensure the employees signed Section 1 Form I-9, which regulations require them to do when hired.

ICE also failed to prove that the individuals with missing forms worked for the company. In addition, the agency lacked evidence of whether the company failed to prepare the files for two workers within three days of their first work days. As such, the judge decided it could not hold the company liable for not preparing or presenting a form to its owner on time.

According to the judge, ICE also failed to identify the company’s violations concerning the remaining eight incomplete forms. The judge ruled that ICE neglected to meet the burden of informing the court about the basis for its motion. According to the judge, the errors described in the briefing did not match those found in the records. As such, the agency failed to specify the affected Form I-9s. ICE also failed to allow the company time to respond to the allegations.

The judge denied the motion by ICE for a summary decision for 20 of the alleged violations. He also ordered ICE and the company to meet and attempt to resolve the remaining violations. Finally, the judge asserted that the court would not assess penalties before making a final order.

This case shows how important it is to ensure you have correct and completed Form I-9s for all employees. The easiest to ensure compliance is by investing in an electronic I-9 management system. This system guides employers through the process and safely and securely stores the forms.

Automate your employment eligibility verification today with the ensured compliance of I-9 Compliance.

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