OCAHO and OSC Continue to Penalize Employers for Immigration Violations

Employers continue to need to be concerned with two Federal agencies, the Office of Chief Administrative Hearing Officer (OCAHO) and the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). Both agencies continue to be active reaching decisions and settlements involving employers.

OCAHO hears cases brought by Immigration and Customs Enforcement (ICE) related to proposed penalties arising out of inspections (also called audits) by ICE for I-9 violations. Furthermore, individuals can file complaints with OSC alleging discrimination on the basis of citizenship status or national origin. (For national origin cases, the employer must employ between four and 14 employees. If it is more than 14 employees, Equal Employment Opportunity Commission (EEOC) has jurisdiction.) OSC has the ability to bring these complaints before OCAHO, settle the complaint, or give the individual the right to bring an action before OCAHO.

Unfortunately, in some of the cases brought before OCAHO, employers try to represent themselves; presumably to save legal fees. But, usually this is a short-sighted view; instead, employers should have a Nashville TN immigration attorney– especially one who is knowledgeable about immigration compliance matters. (Most immigration attorneys do not handle employer immigration compliance cases.)

In calendar year 2016, OCAHO has issued 12 substantive decisions related to penalties for I-9 violations. It has also issued seven decisions involving allegations of citizenship status or national origin discrimination.

Concerning the decisions involving penalties for I-9 violations, the highest assessed penalty was to Golden Employment Group, which received a fine of $209,600 for 465 Form I-9 violations, including a failure to present or prepare 390 Form I-9s. Although Golden Employment Group was represented by counsel, the counsel was not an immigration attorney. It is unknown whether that would have impacted the litigation but if Golden Employment Group had retained an immigration attorney to perform an internal I-9 audit before ICE conducted its audit, it may have had a major impact on the severity of the penalties. Specifically, an immigration attorney could have located the errors by the employer and directed the correction as many as possible.

Also, during 2016, the OSC has entered into 10 settlement agreements with employers. Almost all of the cases investigated by OSC and found to be meritorious are settled by the payment of civil penalties and/or back pay. The highest civil penalty was $65,000 against the American Association of Colleges of Podiatric Medicine (AACPM).

Immigration compliance for employers – I-9 forms, E-Verify, and no discrimination for citizenship status, is a very complicated area of the law. All employers are well-advised to seek an immigration attorney with immigration compliance experience to assist in navigating the rough waters of ICE, OCAHO, and OSC.

SBL photoThanks to our friend and blog author, Bruce Buchanan of Sebelish Buchanan Law PLLC, for his insight into employment law and immigration violations.