In 2012, an average 151,000 jobs were added to the U.S. economy each month. Those 1.8 million new employees had to undergo the employment verification process to begin working, i.e., present proper identification, fill out an I-9 form, and, in some cases, be re-verified using the E-Verify system. This I-9 verification process is all too often overlooked, misinterpreted, or performed incorrectly, leading to employer liability, sanctions, and litigation.
This article serves as a breakdown of what is involved in representing employers in employment verification compliance matters. From the U.S. Department of Homeland Security (DHS) investigation to the Office of the Chief Administrative Hearing Officer (OCAHO) litigation to the appeals process, a thorough understanding of past decisions and factors influencing the outcome of a case can assist in the defense of clients and help mitigate penalties.
What is OCAHO?
OCAHO is a component of the Executive Office for Immigration Review (EOIR) whose administrative law judges (ALJ) hear and decide cases arising under the Immigration and Nationality Act (INA), including employer sanctions cases under INA [section] 274A for failure to comply with employment verification requirements.
From DHS Investigation to OCAHO Litigation
Government investigations and audits of employers' compliance with immigration requirements, particularly audits of employers' I-9 forms, are resulting in significant sanctions. As a result, OCAHO's case load relating to these cases has increased significantly in size and complexity in the last five years and is expected to continue. An interesting and encouraging sign, however, is that many recent decisions have resulted in reduced fines on employers.
When an investigation by the Immigration and Customs Enforcement (ICE), a branch of DHS, reveals potential violations of INA [section] 274A, ICE serves a notice of intent to fine (NIF) to the employer specifying the violation and the proposed fines. The employer elects whether to pay the fines, negotiate a settlement, or request a hearing before OCAHO within 30 days of receipt of the NIF. If the employer takes no action after receiving the NIF, ICE will issue a final order. If the employer chooses to litigate, the government files the complaint with OCAHO.
OCAHO's Litigation Process
The government's filing of the complaint begins the litigation process. The complaint must set out "[t]he alleged violations of law, with a clear and concise statement of facts for each violation alleged to have occurred and a short statement containing the remedies and/ or sanctions sought to be imposed against the respondent." (1) Although this standard is similar to the one set out in Fed. R. Civ. P. 8(a)(2), the thrust of the two standards are considered substantially different. Particularly, the OCAHO complaint is not required to show that "the pleader is entitled to relief."
A complaint filed before OCAHO "has already been the subject of an underlying administrative process," such as an ICE inspection, and, thus, an OCAHO complaint "will ordinarily come as no surprise to a respondent that has already participated in the underlying process." (2)
If the complaint is legally sufficient, the case is assigned to the ALJ and a notice of assignment is served to both parties. The respondent has 30 days to file an answer and the complainant may file a reply and affirmative defenses. Thereafter, the ALJ provides a date and time for a hearing and prehearing conference, which can be conducted by phone.
The parties are encouraged to file prehearing statements outlining their positions. Discovery is undertaken as needed and as agreed upon by the parties. After discovery, the parties can file dispositive motions and responses. (3)
Similarly to Fed. R. Civ. P. 56(c), OCAHO Rule 28 C.F.R. [section] 68.38(c) provides that a complete or partial summary decision may be issued if the pleadings, affidavits, or other record evidence show...