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ICE Re-Audits Employer, Alleged Knowing Hiring of Unauthorized Workers

Ann Cun

Imagine: immigration officers audit your company’s I-9 forms. Nine years later, the officers return to conduct a second audit and issues steep fines, in addition to charging your company with egregious, “knowingly hiring” violations. What to do?

The latest decision released by the Office of the Chief Administrative Hearing Officer (OCAHO) highlights a similar scenario. The decision reveals interesting points our readers may consider in their own I-9 processes.

The Facts of the Case

Associated Painters, Inc. (“API”), a private company based in Washington, received an audit of its I-9 Forms in October 2000. As a result of that audit, the government identified roughly 34 employees whose Section 1 information could not be verified. About a month later, the owner of API “released” the 34 employees. The owner also provided the government with a signed attestation promising the company would reverify any employee from that list of 34 should any of them seek re-employment with API.

July of 2009, ICE revisited API and conducted a second I-9 audit. ICE subsequently found API rehired three employees from the original list of “34 employees” that were “released” back in 2000. The three employees used the same identifying information as in 2000, which led ICE to allege that API knowingly hired unauthorized workers. ICE issued a Notice of Fine. API requested a hearing on July 2010 with OCAHO challenging that particular allegation.

Interesting Perspective from the Court

This case wasn’t an issue of whether API had hired unauthorized workers but rather, whether API had known that the three employees it had re-hired over the course of nine years were unauthorized to work and then went ahead and hired them anyway. The actual knowledge (even constructive knowledge) of the fact that a worker is not authorized to work can get employers stiffer fines for violating immigration laws.

In this case, Judge Thomas reviewed all of the facts that were in the record and arguments from both sides. API reasoned that it shouldn’t be held to the “knowingly hired” standard but rather, a lower standard of “negligence.” It argued that the following facts:

  • The company had a decentralized method of keeping records
  • The re-hiring of the three workers occurred in 2004, 2008 and 2008 (respectively)
  • The number of employment applications it considered
  • The hiring errors took place without any review by either the owners or executive officers
  • The hiring took place years ago in different locations by three different managers
  • The company is now enrolled in E-Verify

The court made two interesting points. First, it ultimately rejected API’s argument that its owner (and executives) should not be held responsible for the actions of its hiring managers. Employers will be held accountable for the actions of their hiring agents.

Second, after reviewing the scant record, the court couldn’t make a determination of whether API had enough knowledge that the three employees it had re-hired were in fact unauthorized workers. In fact, the judge alluded to the owner’s statement that ICE had issued a correction letter indicating one of the workers was in fact work-authorized (though that letter was mysteriously not officially added to the record). Because the government had the burden of proving that API in fact did know, and the record lacked enough evidence to prove that, the judge ultimately issued a decision to deny ICE’s motion.

[One point for the employer….]

The Takeaways

This decision makes very clear that the government is ready, able and willing to re-audit employers (even ones they visited nearly a decade ago).

Owners and Executives take note! The argument that you didn’t know what your hiring managers were doing because the company was disorganized will probably not be a very strong argument absent compelling evidence. Employers are accountable for the actions of their hiring managers and their agents. This alone increases the importance of ensuring all levels of HR members understand how to properly verify employees during the hiring process.

The definition of “constructive knowledge” will be very narrowly interpreted by a court. This puts a greater burden on the government to demonstrate this issue in court, but it means that the government will probably work even harder to ensure future cases will meet this standard.

Much of the decision today contained a long discussion on prior case law and legal arguments. The benefit of experienced legal counsel, during any stage of the audit process, is to assist employers with understanding what their rights are and the likelihood of success on any given case should employers decide to appeal a Notice of Fine. Partnering with knowledgeable attorneys, therefore, is a critical part of reducing over compliance risks.

Disclaimer: The information contained in this blog post is provided for educational purposes only, and should not be construed as legal advice or as a substitute for legal counsel. If you have questions regarding planning I-9 audits as it relates to I-9 compliance or questions about E-Verify, please contact an experienced immigration or employment attorney to obtain advice which is tailored to your unique situation.

Originally published by LawLogix Group Inc Reprinted by permission

About The Author

Ann Cun is a U.S. based immigration attorney who has helped companies in the technology, science, business, sports, entertainment and arts fields secure complex work visas for their employees. With more than a decade of experience as a paralegal and attorney, Ms. Cun possesses a stellar record of success. Her legal expertise also includes conducting internal I-9 audits for companies and developing I-9 compliant strategies and solutions. She is a graduate of UCLA and UC Hastings School of Law and has been invited to speak by the Bar Association of San Francisco and the American Immigration Lawyers Association on U.S. immigration related topics, as well as other international conferences. Ms. Cun is a contributing author and currently serves as Counsel and Principal Editor for LawLogix Group.

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.

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