As regularly reported in the news, the crackdown on employers by the federal government continues. If your company is targeted and I-9 violations are discovered, civil fines for simple paperwork violations – even if no undocumented workers are discovered – will range from $110 to $1,100 per I-9 Form depending on the severity of the errors. Penalties for knowingly hiring or continuing to hire undocumented individuals range from $375 to $16,000 per individual. In addition, the company owner, managers and human resources professionals can be held criminally liable for certain infractions.
Notably, the presence of unauthorized workers or lack thereof is only one of the factors considered by the U.S. Immigration and Customs Enforcement (ICE) in determining the amount of the civil penalty. The case of USA v. Golf International d/b/a Desert Canyon Golf, currently pending before the Office of the Chief Administrative Hearings Officer (OCAHO), is a good example of this.
In USA v. Golf International d/b/a Desert Canyon Golf, the company was charged with 125 violations consisting of failure to ensure that employees properly completed Section 1 of Form I-9, and/or failure to complete Section 2, and four (4) violations for failure to prepare and/or present I-9 Forms. Specifically, ICE alleged that the employer failed: 1) to provide expirations dates for certain documents recorded in Section 2 and no copy of the document was produced to ICE; 2) the employer failed to ensure that certain employees presented proper documents from List A, or from List B and C; 3) the employer failed to sign Section 2 of certain forms; 4) the employer failed to ensure that certain employees provided an Alien Number after checking a box in Section 1 indicating status as a lawful permanent resident; 5) the employer failed to ensure that certain employees signed Section 1; and 6) the employer failed to ensure that certain employees checked a box in Section 1 to indicate employment-authorized status.
The total penalty sought by ICE was in the amount of $136,697 for paperwork violations on 129 I-9 Forms, or an average of $1,059 per I-9 Form. In our experience, the civil penalty imposed by ICE is often closer to the upper bracket of the above range, due to the methodology ICE uses in calculating the amount. Once served with a Notice of Intent to Fine, the employer has the option of attempting to negotiate a reduction of the fine with ICE or proceeding with litigation before OCAHO.
In this hostile climate, there is nothing more important than partnering with experienced counsel to help you identify errors, omissions and discrepancies on your I-9 Forms, and to establish improved employment compliance processes and systems. Careful review of existing I-9 Forms, comprehensive training, and the creation of strong compliance policies can help your company avoid hefty fines, negative publicity, and even criminal charges.