Steep Fines Underscore Value of I-9 Compliance

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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A recent ruling by the Office of the Chief Administrative Hearing Officer (which has jurisdiction over cases arising under the Immigration and Nationality Act) underscores the importance of employers revisiting their internal policies and procedures for verifying employees’ ability to legally work in the United States.

In July of 2015, Administrative Law Judge Ellen K. Thomas with the Office of the Chief Administrative Hearing Officer—which is part of the U.S. Department of Justice’s Executive Office for Immigration Review—ordered a California event-production company to pay more than $600,000 in fines for more than 800 immigration violations, primarily relating to Form I-9 deficiencies. This case is just one recent example of an employer facing high monetary sanctions for I-9 violations and is particularly noteworthy given the nature of the violations. The violations included failure to prepare or present Forms I-9 for certain workers, failure to timely prepare Forms I-9 for other workers, failure to ensure some employees completed certain sections of the form, failure to complete section 2 of the form (which is entitled “Employer or Authorized Representative Review and Verification”), and failure to complete section 3 of the form (which is entitled “Reverification and Rehires”).

Judge Thomas stated in her ruling that the company’s violations “were not among the most egregious.” The steep fines, nevertheless, demonstrate the significant financial burden that even violations on the lower end of the fine schedule used by U.S. Immigration and Customs Enforcement (ICE) can impose upon employers. ICE’s post-inspection penalties can be substantial: Penalties for substantive or technical violations range from $110 to $1,100 per violation, and penalties for knowingly hiring or continuing to employ unauthorized workers range from $375 to $16,000 per violation. In calculating penalties, ICE considers the size of the company, whether the company has made good-faith efforts to comply, the seriousness of the violation, whether the violation involved unauthorized workers, and the company’s history of prior violations.

To stay compliant with federal regulations and avoid fines, employers should maintain internal policies and procedures which ensure that I-9s are prepared timely, accurately, and completely and that I-9 records are properly maintained.

A recent ruling by the Office of the Chief Administrative Hearing Officer (which has jurisdiction over cases arising under the Immigration and Nationality Act) underscores the importance of employers revisiting their internal policies and procedures for verifying employees’ ability to legally work in the United States.

In July of 2015, Administrative Law Judge Ellen K. Thomas with the Office of the Chief Administrative Hearing Officer—which is part of the U.S. Department of Justice’s Executive Office for Immigration Review—ordered a California event-production company to pay more than $600,000 in fines for more than 800 immigration violations, primarily relating to Form I-9 deficiencies. This case is just one recent example of an employer facing high monetary sanctions for I-9 violations and is particularly noteworthy given the nature of the violations. The violations included failure to prepare or present Forms I-9 for certain workers, failure to timely prepare Forms I-9 for other workers, failure to ensure some employees completed certain sections of the form, failure to complete section 2 of the form (which is entitled “Employer or Authorized Representative Review and Verification”), and failure to complete section 3 of the form (which is entitled “Reverification and Rehires”).

Judge Thomas stated in her ruling that the company’s violations “were not among the most egregious.” The steep fines, nevertheless, demonstrate the significant financial burden that even violations on the lower end of the fine schedule used by U.S. Immigration and Customs Enforcement (ICE) can impose upon employers. ICE’s post-inspection penalties can be substantial: Penalties for substantive or technical violations range from $110 to $1,100 per violation, and penalties for knowingly hiring or continuing to employ unauthorized workers range from $375 to $16,000 per violation. In calculating penalties, ICE considers the size of the company, whether the company has made good-faith efforts to comply, the seriousness of the violation, whether the violation involved unauthorized workers, and the company’s history of prior violations.

To stay compliant with federal regulations and avoid fines, employers should maintain internal policies and procedures which ensure that I-9s are prepared timely, accurately, and completely and that I-9 records are properly maintained.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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