Top 5 Common I-9 Errors As Seen Through the Eyes of OCAHO
Today’s article is authored by Bruce Buchanan, Attorney at Siskind Susser, PC in Nashville, Tennessee.
In reviewing the numerous OCAHO decisions issued so far this year, there have been some fairly common violations that have gotten employers in a lot of trouble. Here’s my detailed take on what some of those common errors are and why they consistently plague employers.
#1 – THE MISSING I-9 FORM
The most common violation is the most basic: failure to prepare an I-9 form, especially failing to complete an I-9 Form until after being served with a Notice of Inspection (NOI). This violation occurred in 25 of the 28 decisions this year, as published on the OCAHO’s website. In several cases, U.S. v. Red Bowl Asian Bistro, U.S. v. Kobe Sakura Japanese, and U.S. v. Kobe Sapporo Japanese, the owners simply were unaware of the requirement to complete an I-9 Form for their employees. Unfortunately, ignorance of the law, even if it is the truth, is no excuse.
#2 – SECTION 1 TROUBLES
The second most common violation is failure to ensure the proper completion of Section 1 of the I-9 Form. This occurred in approximately 50% of the 2013 OCAHO decisions. Some of the cases where the violations occurred include U.S. v. Platinum Builders of Central Florida, U.S. v. La Tolteca Mexican Restaurant, U.S. v. Occupational Resource Management, and U.S. v. Super 8 Motel. One of the arguments commonly provided by employers is that they were not responsible for the completion of Section 1; therefore, they could not (or should not) be penalized for those errors in Section 1. Unfortunately, the law says otherwise.
The responsibility for executing an error-free Form I-9 rests solely on an employer, even if Section 1 must be completed by an employee. After all, ICE is not going to seek out each individual employee and levy a monetary fine against the offending employee. Rather, ICE is going to fine the employer because it is the employer’s legal responsibility to review the information recorded by employees in Section 1.
While many of the OCAHO decisions do not specify the exact details of what was omitted or incorrectly completed in Section 1, some of the decisions do provide sufficient details. Of the more detailed cases, the most common Section 1 error relate to the employee’s legal status in the U.S. Typically, employees will:
- Fail to check one of the four boxes attesting to the employee’s status;
- Check off two or more of those boxes;
- Check a box for permanent residence or employment authorization but fail to include an “A” number; or
- Fail to sign the attestation in Section 1.
For many employers, these types of violations are easily preventable simply by conducting a thorough review of Section 1 before proceeding to Section 2.
#3 – BACKDATING
A third, common I-9 error that is often reflected in OCAHO decisions is the backdating of I-9 Forms. Backdating occurs when the form is signed and the date indicated is not the date the form was actually signed, but when the form should have been signed, days, months or even years prior. Often, this violation is committed in conjunction with the failure to complete the I-9 Forms until after the service of the NOI.
There are ways ICE can typically detect backdating of I-9 form; simply by “marking” the I-9 Forms during an NOI audit. Another way is comparing the revision date of the form to the dates of the signatures. Both of these examples were highlighted in U.S. v. Kobe Sakura Japanese and U.S. v. Kobe Sapporo Japanese. These types of violations can lead to a finding that the employer lacked good faith, which accounts for a 5% aggravating factor, which further increases an I-9 penalty.
#4 – SECTION 2 ERRORS
Employers also commit a wide variety of errors in the completion of Section 2. Some of the OCAHO decisions provide enough details to glean what types of Section 2 errors incur the wrath of ICE and OCAHO. Based on decisions like U.S. v. Black and Blue Steak and Crab – Buffalo, U.S. v. Super 8 Motel, and U.S. v. Taste of China, which specify the Section 2 violations, there are numerous types of violations, including:
- Failure of the employer to sign the Section 2 attestation;
- Failure to indicate a List A or B/C documentation;
- Insufficient information listed in List A or B/C; or
- Improper or expired documents listed in List A or B/C.
On some occasions, the employers, who did not record any information in Lists A, B or C, have argued that supporting documentation, attached to the I-9 Form should amount to substantial compliance of the Form I-9 requirements. However, OCAHO has repeatedly stated, and the Ninth Circuit Court of Appeals recently affirmed, that this reasoning is not tenable. (See U.S. v. Ketchikan Drywall Services). Affixing photocopies of I-9 support documents to an incomplete I-9 Form, which has failed to record any of the relevant information in List a or B/C, does not satisfy an employer’s legal duties. However, if an employer fails to record one or two pieces of data, such as the document title and/or the expiration date of a document, the attachment of those documents, which includes that data, to the I-9 form, when presented to ICE, will amount to only a technical violation. (Technical violations can be corrected within 10 business days of ICE’s Notice of Technical Errors without incurring a financial penalty.)
#5 – UNAUTHORIZED WORKERS
The one violation that is rarely present in OCAHO decisions is knowingly hiring and/or employing unauthorized workers. This is probably because those employers who have knowingly hired and/or employed unauthorized workers are less likely to litigate a case before OCAHO, unless it had a strong argument it did not actually knowingly hire an unauthorized worker. It would make sense that most of those cases would probably settle before ever reaching OCAHO.
If your organization has never had to face ICE or OCAHO, then that is something to give thanks! Help avoid these top five common errors by making them a priority in your I-9 training and compliance programs. Happy Thanksgiving! Let’s see what trends will develop by year’s end for a follow up article in 2014!