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.

Written by:

Published In:


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.

© Buchanan Ingersoll & Rooney PC | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.