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MUST Read Decision Regarding I-9 Penalties and Statute of Limitations for Employers!


On October 25, 2016, an administrative law judge with the Office of the Chief Administrative Hearing Office (“OCAHO”) held that U.S. Immigration and Customs Enforcement (“ICE”) waited too long to file allegations against, St. Croix Personnel Services Inc. (“St. Croix”) a personnel services company for incomplete or incorrect I-9 forms for some of its employees.
There is a five year statute of limitations for assessing penalties against an employer who fails to correctly complete an I-9 form.  The issue in the case was when that statute of limitations begins to run.  ICE argued that the errors they discovered on certain I-9 forms were not time-barred because the forms were not initiated correctly and errors not cured until February and March 2012, which was within five years of the complaint being filed in July 2015.

Alternatively, St. Croix argued that because the last of the eight employees was hired in October 2007, the statute of limitations for any and all I-9 errors ran out by October 2012.  The judge agreed with St. Croix and found that “[t]imeliness verification failures constitute an exception to the general rule that paperwork violations can be cured”, meaning that timeliness failures are frozen in time and cannot be cured once the statue of limitations passes. See USA v. St. Croix Personnel Services Inc., case number 15A00070.  ICE sought $16,690 in penalties, but the judge reduced the penalty to $5,450, because by St. Croix’s own admission they failed to ensure the forms for eight employees were properly filled out. 

This is a very important decision for employers because an employer cannot be penalized for failing to timely initiate the filing of an I-9 form when the employee was hired more than five years ago.  Though, it is important keep in mind a few basics regarding I-9 forms.  First, the employer can still be penalized for an improperly completed I-9 form.  Second and not relevant to this case, always keep in mind that an employer is obligated by law to keep an employee’s I-9 on file for at least three years after the date of hire and for at least one year after the date of termination, whichever is greater.  Once the time has passed, be sure to discard those the company is no longer required to keep on file because penalties can still be assessed for those I-9s.  Third, if ICE ever shows up at your business and demands to review the company’s I-9s, you are afforded three business days before you are obligated to turn over the documents.  In that time, be sure to contact your immigration attorney so the case is handled properly in an effort to reduce any penalties that may be assessed.

Please contact Danielle M. Claffey at 404.949.8151, or by email at dclaffey@immigration.net with any questions.

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U.S.C. citation

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CFR citation DOJ penalty assessed after 8/1/2016 ($) 1 DOJ penalty assessed after 2/3/2017 ($) 2 8 U.S.C.     IRCA; Unfair immigration-related employment practices, document abuse (per individual discriminated against).     …