Last week Stacy Stiffel Paddack was announced as the newest Administrative Law Judge (ALJ) at the Office of the Chief Administrative Hearing Officer (OCAHO). Judge Paddack will rule on the proper penalty in immigration compliance (Form I-9 violations) cases brought by U.S. Immigration and Customs Enforcement (ICE). Welcome aboard, Judge Paddack.
The statutory range for I-9 violations is $110 – $1100 per defective Form I-9. In calculating the proposed penalty amount for I-9 violations, ICE divides the number of violations by the number of employees for which a Form I-9 should have been prepared to obtain a violation percentage. This percentage is used as a baseline fine amount, with deviations available depending on factors such as whether or not this is the employer’s first offense, size of the employer, and whether unauthorized aliens were working for the employer. ICE applies a mechanical calculation when determining the penalty amount and there is little discretion exercised benefitting the employer. ICE’s standard fine amounts are listed in the table below:
|
|
Standard Fine Amount |
||
| Substantive Verification Violations | 1st Offense $110 – $1100 |
2nd Offense $110 – $1100 |
3rd Offense + $110 – $1100 |
|
0% – 9% |
$110 |
$550 |
$1,100 |
|
10% – 19% |
$275 |
$650 |
$1,100 |
|
20% – 29% |
$440 |
$750 |
$1,100 |
|
30% – 39% |
$605 |
$850 |
$1,100 |
|
40% – 49% |
$770 |
$950 |
$1,100 |
|
50% or more |
$935 |
$1,100 |
$1,100 |
OCAHO is not bound by ICE’s methodology, and ALJs like Judge Paddack can consider factors not included in ICE’s chart when determining the proper penalty amount, such as ability to pay the proposed penalty and any deterrent effect of the proposed penalty, and can weigh the different factors unequally. A review of OCAHO decisions reveals that the final penalty amount ordered by OCAHO is often significantly lower than the figure on the ICE penalty chart.