Skip to main content

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

By

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.
Labels:

Comments

Post a Comment

Popular posts from this blog

If You Are An Immigrant (even a US Citizen), Here Are 9 Things You Should Know

By
Are you a Naturalized U.S. Citizen, Lawful Permanent Resident, Visa Holder, or an Undocumented Immigrant? We recommend you take the following steps to protect yourself in our current version of America. The last couple of weeks have reminded immigrants, even naturalized U.S. citizens, that they were not born in the United States. Our office has received countless phone calls, emails, and social media messages from people worrying about what their family’s future in the United States holds. Most people want to know what they can do now to protect themselves from what promises to be a wave of anti-immigration activity by the federal government. Trump's Executive Order on Interior Enforcement has some provisions that should make most Americans shiver.  We recommend the following actions for each of the following groups: Naturalized U.S. citizens. In particular if you have a foreign accent, and you are traveling within 100 miles of any US Border (including the oceans...
231 comments
Read more

Seven Reasons Why the Georgia Legislature Should Repeal HB-87

By
Recently the Alabama Attorney General called on the Alabama State Legislature to repeal parts of Alabama's horrid anti-immigration law ( HB 56), because of the "unintended" consequences of the bill (frankly, what happened was not unintended). Because of the similarity between the two laws, Georgia's Speaker of the House, David Ralston was asked whether Georgia Legislature would repeal part or all of HB 87, Georgia own anti-immigration law. HB 87 has caused almost a half a billion dollars in damage to the Georgia economy (along with untold suffering in Georgia's immigrant communities) without any noted or reported positive effect. Speaker Ralston plainly stated that the Georgia Legislature would NOT do anything to repeal HB 87 . While it understandable why a politician would not admit that a pet bill he shepherded and pushed through the state legislature was simply bad law, it is also clear that Speaker Ralston is facing a challenge on his RIGHT in th...
1 comment
Read more

Why is USCIS Taking So Long to Renew DACA Work Permits?

By
If the calls to our office are any indicator, there are thousands of DACA recipients whose work permit applications were filed at least three months prior to expiration, who are still waiting for their renewed work permits.  Without renewed permits, these individuals lose the right to work legally, the right to drive, and may once again accrue unlawful presence. The DHS published a notice in October 2014 advising DACA recipients that they could file their request for extension up to 150 days (5 months) prior to expiration.  As with all things government, very few of the DACA recipients, who tend not to frequent government websites, knew about the memo and many did not file so far before expiration perhaps thinking that extending a work permit was a like extending a drivers license, its is done in a few minutes.  As an experienced immigration lawyer will tell you, the USCIS does nothing quickly, and certainly does not worry that a person may lose their job or their drive...
16 comments
Read more