High Rate Of I-9 Violations Does Not Necessarily Show Bad Faith

In a recent OCAHO decision, the Administrative Law Judge found that the even 90% I-9 violation rate is not sufficient to show bad faith and reduced the fine from $30,574.50 to $14,600.

In the case U.S. vs. Horno MSJ, Ltd., Company, the company is found to be liable for thirty-two violations of 8 U.S.C. § 1324a(a)(1)(B). In the process of penalty assessment, ALJ considered the following factors: "1) the size of the employer's business, 2) the employer's good faith; 3) the serious of the violations, 4) whether or not the individual was an unauthorized alien, and 5) the employer's history of previous violations" under 8 U.S.C. § 1324a(e)(5).

ALJ found that the employer, Horno MSJ, Ltd. "is a small family business with no history of previous violations; the company is a quintessential 'mom and pop' operation that is modest both in terms of its number of employees as well as its resources" Although serious substantive violations had been found, such as failures to complete the Section 1 status box, to sign in section 2, and to record information in List A, B or C, the ALJ was not convinced by the government that the high rate of violations "demonstrates that Horno was not engaged in a good faith effort to comply with the law." The ALJ stated that "OCAHO case law has long held that bad faith requires a showing of culpable conduct beyond merely a high rate of violations, and that even a dismal rate of I-9 compliance is not sufficient to make that showing." Even though the unauthorized employment was found, ALJ found that the government did not prove all of its allegations. In conclusion, ALJ emphasized that the purpose of the penalty is to deter future violations but not to be "unduly punitive". As such, the ALJ adjusted the rate of penalty to the midrange of the penalty schedule and significantly reduced almost 50% from the penalty ICE seeks.

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