The Immigration Reform and Control Act required employers to verify the identity and employment eligibility of their employees and created criminal and civil sanctions for employment related violations. The Act designated the Employment Eligibility Verification Form I-9 (Form I-9) as the means of documenting this verification. Employers are required by law to maintain for inspection original Forms I-9 for all current employees. In the case of former employees, retention of Forms I-9 are required for a period of at least three years from the date of hire or for one year after the employee is no longer employed, whichever is longer.
In the event of a United States Citizenship and Immigration Services (USCIS) audit of an employer’s I-9 forms, a failure to comply with federal law can result in fines. If there are repeated violations, criminal penalties may be imposed.
In the event of an audit, the administrative inspection process is initiated by the service of a Notice of Inspection (NOI) upon an employer compelling the production of Forms I-9. By law, employers are provided with at least three (3) business days to produce the Forms I-9. Often, ICE (U.S. Immigration and Custom Enforcement) will request the employer provide supporting documentation, which may include a copy of the payroll, list of current employees, Articles of Incorporation and business licenses.
Monetary penalties for knowingly hire and continuing to employ violations range from $375 to $16,000 per violation, with repeat offenders receiving penalties, at the higher end. Penalties for actual violations, which includes failing to produce a Form I-9, range from $110 to $1,100 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.
ICE will notify the audited party, in writing, of the results of the inspection once completed. The following are the most common notices:
Notice of Inspection Results – also known as a “compliance letter,” used to notify a business that they were found to be in compliance.
Notice of Suspect Documents – advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has determined that an employee is unauthorized to work and advises the employer of the possible criminal and civil penalties for continuing to employ that individual. ICE provides the employer and employee an opportunity to present additional documentation to demonstrate work authorization if they believe the finding is in error.
Notice of Discrepancies – advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has been unable to determine their work eligibility. The employer should provide the employee with a copy of the notice, and give the employee an opportunity to present ICE with additional documentation to establish their employment eligibility.
Notice of Technical or Procedural Failures – identifies technical violations identified during the inspection and gives the employer ten (10) business days to correct the forms. After ten business days, uncorrected technical and procedural failures will become substantive violations.
Warning Notice – issued in circumstances where substantive verification violations were identified, but circumstances do not warrant a monetary penalty and there is the expectation of future compliance by the employer.
Notice of Intent to Fine (NIF) – may be issued for substantive, uncorrected technical, knowingly hire and continuing to employ violations.
In instances where a NIF is served, charging documents will be provided specifying the violations committed by the employer. The employer has the opportunity to either negotiate a settlement with ICE or request a hearing before the Office of the Chief Administrative Hearing Officer (OCAHO) within 30 days of receipt of the NIF. If the employer takes no action after receiving a NIF, ICE will issue a Final Order. If a hearing is requested, OCAHO assigns the case to an Administrative Law Judge (ALJ), and sends all parties a copy of a Notice of Hearing and government’s complaint, thus setting the adjudicative process in motion.
The Notice of Hearing spells out the procedural requirements for answering the complaint and the potential consequences of failure to file a timely response. Many OCAHO cases never reach the evidentiary hearing stage because the parties either reach a settlement, subject to the approval of the ALJ, or the ALJ reaches a decision on the merits through dispositive prehearing rulings.
Determination of Recommended Fine
The cumulative recommended fine set forth in the NIF is determined by adding the amount derived from the Knowing Hire/Continuing to Employ Fine Schedule (plus enhancement or mitigation) with the amount derived from the Substantive/Uncorrected Technical Violations Fine Schedule (plus enhancement or mitigation). Typically, the date of the violation shall be the date ICE conducted the Form I-9 inspection and not the date the Form I-9 was completed by the employer.