How ICE determines the fines for I-9 violations

What is are the I-9 Requirement?

Immigration Reform and Control Act of 1986 (IRCA) required employers to verify the identity and employment eligibility of their employees and created criminal and civil sanctions for employment related violations.

IRCA made it unlawful for employers to knowingly hire or continue to employ unauthorized workers. The agency formerly known as  the Immigration and Naturalization Service (INS) (now part of the Department of Homeland Security (DHS)) created Form I-9 and required all U.S. employers and their employees to complete the for accurately and and timely. Immigration and Customs Enforcement (ICE) is responsible for investigating employers for I-9 violations.

I-9, Employment Eligibility Verification

Form I-9 has 3 parts. The law requires that the employee complete Section 1 at the time of hire or when the employee begins work. Section 1 may also be completed at the application stage, as long as the practice does not discriminate. The employer must complete Section 2 within three business days of hire and certify that the employee’s documents of identity and work authorization appear to be genuine and belong to the employee. Section 3 is completed by the employer when it is necessary to update or re-verify an employee’s work authorization document(s).

If you have heard of employers or company management getting arrested and prosecuted after a raid by  Immigration and Customs Enforcement (ICE), this is the statue behind it.  ICE is the agency in charge of enforcing I-9 compliance. An I-9 form is referred to as an Employee Eligibility Verification.  Under Trump administration, ICE investigations and raids have increased.  There was a more than 300 percent increase in investigations — including federal audits to determine whether companies were hiring undocumented immigrants — between the 2017 and 2018 fiscal years, according to ICE.

How ICE enforces I-9 compliance

Employers are required by law to maintain for inspection original Forms 1-9 for all current employees and for former employees -3 years from the date of hire or 1 year from end of employment whichever is longer.

ICE starts the administrative inspection process by serving a Notice of Inspection (NOI) letter on an employer. The Notice of Inspection letter requires the employer to provide the Forms 1-9. Usually, ICE will allow the employer 3 business days to present the Forms 19 and a laundry list of supporting documentation, which may include a copy of the payroll, list of current employees, Articles of Incorporation, and business licenses.

Fines for I-9 violations

The rules for employer sanctions are found in provisions of the Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. § 1324a (2012). Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. § 1324a (2012).  The Acts describes how fines are determined and how much to assess per violation. Monetary penalties for knowingly hire and continuing to employ violations range from $573 to $20,130 per violation, with repeat offenders receiving penalties, at the higher end. Penalties for substantive violations, which includes failing to produce a Form I-9, range from $230 to $2,292 per violation. In determining penalty amounts, ICE considers five factors: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations.  When you consider the fact that one employee’s I-9 may contain multiple violations, the fines can add up even if a business has only a handful of employees.