OCAHO Launches E-Filing Pilot, Rules That E-Verify Participation Does Not Provide Blanket Protection

Posted on 06/02/2014 by Mark A. Ivener, A Law Corporation

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E-filing pilot. The Department of Justice’s Office of the Chief Administrative Hearing Officer (OCAHO) has launched a voluntary pilot program to test an electronic filing system in certain cases filed with OCAHO under 8 U.S.C. § 1324a and b.

The pilot program began on May 30, 2014, and will run until November 26, 2014. Under the pilot, filing with OCAHO and service on other parties can be accomplished by email in eligible cases. OCAHO said it is undertaking this temporary testing initiative in an effort to make submission of case documents more convenient and to reduce the time and expense incurred in paper filings.

The Federal Register notice describes the procedures for applying for and participating in the pilot program. It is available at http://www.gpo.gov/fdsys/pkg/FR-2014-05-30/pdf/2014-12183.pdf.

Ruling: E-Verify participation does not provide blanket protection. In a recent case, an employer argued that participation in E-Verify entitled it to a presumption that it had not violated the law, but OCAHO ruled that E-Verify provides no such blanket protection.

OCAHO noted that the employer, Golf International d/b/a Desert Canyon Golf, had failed to ensure that various employees properly completed I-9 employment authorization verification forms. Golf contended that the violations were technical, but OCAHO found them to be substantive. Among other things, section 2 was blank for 93 employees, and signatures were missing in section 2 for 14. Several employees checked a box indicating permanent resident status but failed to provide their A numbers.

OCAHO noted that “[a]n employer’s first responsibility in [the E-Verify] program is, in fact, to properly complete an I-9 form for each new employee. As [U.S. Immigration and Customs Enforcement] points out, the E-Verify Memorandum of Understanding that must be signed by a participating employer provides that ‘The Employer understands that participation in E-Verify does not exempt the Employer from the responsibility to complete, retain, and make available for inspection Forms I-9 that relate to its employees.’ “

See also the Decision here.

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About the Author

Mark Ivener is an experienced business and EB-5 immigration attorney who has written 5 books on Immigration Law as well as has written numerous articles and spoken at many events on EB-5 topics.