Immigration

Srinivasa Reddy Kandi: I-9 Compliance Government Enforcement

February, 25, 2025-04:49

Share: Facebook | Twitter | Whatsapp | Linkedin | Visits: 37746 | :2821

---

I-9 Compliance Government Enforcement

With the new administration in place, it is anticipated that there will be an increase in enforcement related to I-9 compliance. It is crucial for employers to prepare adequately to verify the employment eligibility of their workforce and protect themselves from potentially severe penalties.

Compliance with Form I-9 is vital for confirming the identity and employment authorization of all employees. Additionally, there are circumstances that necessitate employers to reverify work authorization, which may occur multiple times during an employee's tenure with the organization. This procedure is essential to ensure that employers do not engage or retain unauthorized personnel. Errors in this area can lead to substantial civil fines if a company is subjected to an audit by U.S. Immigration and Customs Enforcement (ICE). Therefore, employers should take proactive measures to assess their policies, rectify any inaccuracies, and establish internal systems that align with I-9 regulations.

In January 2025, the Department of Homeland Security (DHS) announced an increase in fines for Form I-9 violations to reflect annual inflation. These new penalties will apply to violations assessed after January 2, 2025, for infractions that occurred after November 2, 2015. The revised fines are as follows:
Substantive and Uncorrected Technical Paperwork Violations:

The minimum penalty for each instance of substantive paperwork or uncorrected technical violations is set at $288. Conversely, the maximum penalty for such violations can reach up to $2,861.

Knowingly Hiring or Continuing to Employ Unauthorized Workers:

For a first offense, fines range from $716 to $5,724. In the case of a second offense, fines escalate to between $5,724 and $14,308. For a third or any subsequent offense, the fines can vary from $8,586 to $28,619.

Overview of the I-9 Inspection (Audit) Process:

The audit process is initiated by ICE through the issuance of a Notice of Inspection (NOI), which requires employers to submit Forms I-9 for all employees within three business days. The purpose of this inspection is to identify any violations that may result in criminal charges against the employer or administrative penalties for substantive or technical noncompliance.
Employers are generally required to submit I-9 forms for both current and former employees, along with payroll records from the previous three years, a list of current employees, and various corporate documents, including Articles of Incorporation and business licenses, as stipulated by the Notice of Intent (NOI).

Substantive violations are subject to fines. In cases where technical violations are discovered during the review process, the Immigration and Customs Enforcement (ICE) agency issues a “Notice of Technical or Procedural Failures,” which details the inaccuracies found on the I-9 forms. Employers are afforded a period of 10 business days to rectify these discrepancies. Should employers neglect to address the technical violations, these will be escalated to substantive violations, resulting in applicable fines.

When violations necessitate penalties, ICE issues a Notice of Intent to Fine (NIF) accompanied by charging documents that specify the violations and the corresponding fines for both substantive and any uncorrected technical violations. Additional penalties may be levied if it is determined that the employer knowingly hired or retained unauthorized workers.

Understanding the Calculation of Fines

To determine fines, ICE calculates the number of violations in relation to the number of employees for whom a Form I-9 should have been completed, thereby establishing a violation percentage. This percentage serves as a basis for the fine amount, which varies depending on whether it is a first, second, or subsequent offense. For instance, if an employer is expected to have 100 compliant Forms I-9 but ICE finds errors on 70 of them, the substantive error rate would be 70%. A similar calculation is applied to assess the error rate for violations related to knowingly hiring or continuing to employ unauthorized workers. Once the error rate is established, ICE utilizes a graduated scale to determine the fine amount, with higher violation percentages resulting in increased fines per I-9, up to the maximum specified amount per I-9.
If applicable, ICE will subsequently incorporate the amount resulting from "knowingly hiring or continuing to employ unauthorized workers" into the total derived from the substantive or uncorrected technical violations schedule.

Furthermore, once the initial violation is established, ICE has the authority to adjust the fine amount by 25% based on five specific factors:

1. Size of the business;
2. Good faith efforts to comply;
3. Severity of the violations;
4. Presence of unauthorized workers; and
5. Compliance history.

Each of these factors may lead to an adjustment of the base fine level by 5% for each factor, culminating in a potential total adjustment of 25%.

ICE has demonstrated a degree of leniency towards employers who take proactive measures to rectify unintentional mistakes and enhance their I-9 policies and procedures prior to receiving a Notice of Inspection (NOI). Consequently, it is highly advisable for employers to perform regular internal audits to ensure they are adequately prepared should ICE issue an NOI.

Srinivasa Reddy Kandi is an Immigration policies researcher and immigration laws analyst.
Kandi Srinivasa Reddy, Srinivasa Reddy Kandi, #KandiSrinivasaReddy, #SrinivasaReddyKandi
Disclaimer: The information presented here is general in nature and might not be applicable in any given situation. It should not be interpreted as legal advice or taken for granted that it is always current.