In a recent decision*, OCAHO (Office of the Chief Administrative Hearing Officer) rejected the argument that ICE has too much discretion in determining what is a “technical” violation (which can be corrected with no fine) and what is “substantive” (which will be fined).
It also confirmed that the legacy INS memo** issued as “interim” in 1997 binds ICE in making this determination, proving that if something is interim long enough it becomes final.
Silverado had argued, among other things, that ICE had no proof that 13 I-9s that appeared on their face not to be prepared timely were actually prepared timely but lost in some manner. OCAHO clarified that ICE was not required to prove violations beyond a reasonable doubt and also was not required to consider all possible scenarios that would negate the employer’s liability. It said that because of the 1997 interim memo, ICE did have standards to make determinations, not unfettered discretion.
Silverado had a good reason to push back on the violation: ICE had determined that two I-9s had substantive violations because the employer wrote “SSN” instead of spelling out “Social Security Number” – and one had a copy of the Social Security card with the I-9. While the correct way to complete Section 2 would have been to say “Social Security Administration” or “SSA” as the issuer of the SSN, I think we all know what they meant.
The point became moot because the I-9s in question were not timely prepared anyway, so they were in violation on that count despite any absurdity in the ICE rationale.
*U.S. v. Silverado Stages, Inc, OCAHO Case No. 12A00040.
** Paul W. Virtue, INS Acting Executive Commissioner for Program, Interim Guidelines: Section 274A(b)(6) of the Immigration & Nationality Act Added by Section 411 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (March 6, 1997)