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Immigration Law

OCAHO on 'constructive knowledge' for I-9 purposes

"Context matters. The totality of the circumstances matters. Inferences are drawn from facts, not from legal syllogisms and not from the air.  The undisputed facts presented here are that [X] made a commitment in 2000 to reverify the employment eligibility of 34 named individuals, and that three of those individuals somehow got hired four to eight years later without the reverification [X] promised. This record is otherwise devoid of evidence as to any surrounding facts and circumstances from which it may be inferred that [Y] and [Z] were hired because [X] or others at [X] failed to exercise reasonable care, abandoned their 1-9 responsibilities, elected to look the other way, acted recklessly, or otherwise engaged in culpable conduct. ... Aramark warns us that the concept of constructive knowledge must be narrowly construed and sparingly applied. 530 F.3d at 824-85. Collins, too, cautions us against taking too expansive a view of constructive knowledge. 948 F.2d at 554-55. Considering those admonitions as well as the thrust of OCAHO case law, liability may not be found on this record. ... There is no circumstantial or other evidence to support an inference that the employer or agents of the employer acted with a level of culpability sufficient to support a finding of constructive knowledge." - Matter of X, May 30, 2012.

[Hats off to Bart Klein!]