OCAHO Holds That Backdating Alone Is Not Evidence of a Lack of Good Faith


The Office of the Chief Administrative Hearing Officer (OCAHO) has jurisdiction to review penalties imposed by the U.S. Immigration and Customs Enforcement (ICE) for I-9 compliance violations.  In calculating the amount of the penalty, OCAHO is not bound by ICE’s methodology.

In the matter of U.S. v. Kobe Sakura Japanese, Inc., OCAHO reduced ICE's requested penalty of $981.75 per form to $400 for violations for failure to ensure timely completion of Section 1 on Form I-9 and $600 for violations for failure to prepare or present Forms I-9.  ICE claimed that the backdating of certain forms is evidence of a lack of good faith and should be the basis for a penalty enhancement.  However, the Administrative Law Judge (ALJ) held that backdating alone is insufficient to support a finding of a lack of good faith, without consideration of the surrounding circumstances.  Specifically, in the instant case, no managers were available on the day of the inspection and Section 1 was backdated by the employees only.  It was unclear what instructions, if any, the employees were given when served with the Notice of Inspection.

It is important to have an established procedure for handling government audits of your I-9 Forms and to contact experienced immigration counsel even before becoming the subject of an audit.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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