Compliance with the I-9 employment eligibility verification requirements continues to be a challenge to many employers, with potentially serious consequences for violations, as two recent cases show.
On February 24, 2015, the United States Department of Justice, Executive Office for Immigration Review, Office of the Chief Administrative Hearing Officer (“OCAHO”) found that Liberty Packaging, Inc. failed to timely prepare I-9 forms for eighteen employees. Liberty Packaging admitted that it, following an investigation by the United States Department of Homeland Security, Immigration and Customs Enforcement (“ICE”), presented to ICE a set of newly created and backdated I-9s, but claimed that this was a mistake and that it actually had in its possession properly and timely prepared I-9 forms. OCAHO held that the existence of the company’s belated second set of I-9s was irrelevant for purposes of determining the company’s liability, but was a factor to be considered in assessing a penalty. Ultimately, OCAHO found that Liberty Packaging did not act in good faith when it created the second set of I-9 forms and assessed a penalty of $650 per defective I-9, for a total penalty of $11,700.
On May 21, 2015, the United States Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair Employment Practices (“Office of Special Counsel” or “OSC”) reached a record settlement with Luis Esparza Services, Inc. to resolve claims that the company engaged in a pattern of discrimination against individuals because of citizenship status. Specifically, Luis Esparza Services required Lawful Permanent Resident employees to present specific documents as part of the I-9 process. This is not permitted; individuals are permitted to choose any of the acceptable supporting identity and/or work authorization documents listed on the Form I-9. This settlement agreement is noteworthy because of the size of the civil penalty amount — $320,000 — the largest civil penalty ever secured to resolve a discrimination claim under the Immigration and Nationality Act.
These cases are telling examples to remind employers to take seriously the employment eligibility verification requirements contained in U.S. immigration law.