Immigration Law

OCAHO Reduced I-9 Fine from $168K to $22K - USA v. Foothill Packing, Inc.

"The amended complaint asserts in Count I that Foothill hired 382 individuals for whom the company either failed to ensure each employee properly completed section 1 of Form I-9 or failed itself to properly complete section 2 or 3 of the form.   Count II as amended states that Foothill hired Luis Rivas knowing him to be unauthorized for employment in the United States.  The amended complaint seeks penalties in the total amount of $168,455. ...

ICE offered no affidavits or other evidence to controvert Tew’s assertions that Agent Scott Young “told us to send only the I-9 forms and E-Verify confirmation sheets and not copies of the documents provided by employees.”  ICE did not, in fact, respond to Foothill’s motion for summary decision at all.  I credit, as I must, the unrebutted factual allegations made in the declaration of Tony Tew. ... I am not at liberty to simply disregard the facts asserted, as ICE evidently would have me do.   Absent countervailing evidence, I therefore find that Foothill made diligent efforts at the outset of the investigation to provide copies it made of the Mexican passports for these H-2A employees, but that those efforts were thwarted.  I decline to find the company liable for failure to present documents the government refused to accept when proffered.  Under the peculiar circumstances of this case, I find Foothill’s attempts were sufficient to constitute a constructive presentation of the documents.  Because no opportunity was afforded for Foothill to correct what would otherwise have been treated as technical or procedural errors in the I-9s for these H-2A workers, the allegations respecting these 337 violations will be dismissed. ...

Apart from the size of the company, the remaining statutory paperwork factors are favorable to Foothill, and none of the violations involved a failure to prepare or present I-9s.  While some of the violations are less serious than others, assessment at the rate of $440 is within the midrange of permissible penalties and is not unreasonable.  The penalty proposed for the knowing hire violation, however, is woefully inadequate and will be increased.  Foothill will be directed to pay penalties of $19,360 for the forty-four paperwork violations, and $2200 for the knowing hire of Luis Rivas. ...

Foothill Packing, Inc. is liable for forty-four paperwork violations and for hiring Luis Rivas with actual or constructive knowledge that he was unauthorized for employment in the United States.  Foothill is directed to pay civil money penalties totaling $21,560.  The government’s allegations involving violations in the I-9 forms for the remaining 337 workers named in Count I are dismissed." - USA v. Foothill Packing, Inc., Jan. 13, 2015.  [Hats off to Monte Lake!]