The Department of Homeland Security (DHS) recently released new increased fines for Form I-9 penalties, to account for annual inflation. The new fines will be effective for penalties assessed after June 17, 2020 for associated violations which occurred after November 02, 2015. The increased fines are as follows:
Substantive/Uncorrected Technical Paperwork Violations:
- Minimum fine per violation for substantive paperwork or uncorrected technical violations increased from $230 to $234
- Maximum fine per violation for substantive paperwork or uncorrected technical violations increased from $2,292 to $2,332
Knowingly Hiring/Continuing to Employ Unauthorized Workers:
- First offense fines increased from $573-$4,586 to $583-$4,667
- Second offense fines increased from $4,586-$11,463 to $4,667-$11,665
- Third or subsequent offense fines increased from $6,878-$22,972 to $6,999-$23,331
Mistakes on the seemingly simple 2-page I-9 form can add up quickly and lead to hefty civil fines if an employer is issued a Notice of Inspection by Immigration and Customs Enforcement (ICE). A Notice of Inspection is essentially an audit of a company’s I-9 forms.
Note that if an employer is issued a Notice of Inspection, ICE will provide the employer only 3 days to produce its I-9 forms for each employee. Thereafter, ICE will serve on the employer a “Notice of Technical or Procedural Failures” letter for all technical violations identified during the I-9 inspection. The employer will be provided the marked copies of the I-9 forms with technical violations and will be given 10 business days to correct the forms. Any uncorrected technical violations will be treated as substantive violations. Further, any errors considered substantive, as described below, are not allowed to be corrected within the 10-day correction period. Fines will then be assessed accordingly for substantive violations and uncorrected technical violations through a Notice of Intent to Fine.
Although this list is not exhaustive, some examples of substantive and technical paperwork violations include:
Substantive Paperwork Violations:
- Failure to timely prepare Form I-9
- Failure to reverify employment authorization in a timely manner in Section 3 when required
- Failure by the employer to sign the attestation in Section 2 of Form I-9
- Failure by the employer to sign the attestation in Section 3 when reverification is required
- Completing a false Section 2 attestation such as when the certifier examines the documents outside the presence of the employee presenting them
- Failure by the employee to sign Section 1
- Failure to timely present Form I-9
- Failure to prepare Form I-9 for an employee
- Failure to correct technical errors after being served a Notice of Technical or Procedural Failures letter by ICE
Technical Paperwork Violations:
- Failure by the employee to list his or her maiden name, address, or birth date in Section 1
- Failure by the employee to include his or her “A” number if the box is checked in Section 1 indicating he or she is a permanent resident (will only be considered technical if the A number is included in Section 2 or on a copy of a document retained with the I-9, otherwise will be considered substantive)
- Failure by the employee to include his or her “A” number or admission number if the box is checked in Section 1 indicating that he or she is “an alien authorized to work” in the United States (will only be considered technical if the number is included in Section 2 or on a copy of a document retained with the I-9, otherwise will be considered substantive)
- Failure of the form’s preparer or translator to print his or her name, address, signature or date in the preparer’s certification box
- Failure by the employer to provide the title, business name, and business address in Section 2
ICE has quadrupled the number of I-9 audits issued between 2017 and 2019. Employer compliance is key to avoid civil fines for I-9 violations. The best way to reduce the chances of facing financial risks and public relations exposure is by taking a proactive approach in your company’s HR management process and prioritizing comprehensive internal reviews of your company’s I-9 files.
By: Krystal Alanis
Krystal Alanis is a Partner at Reddy & Neumann P.C. She acts as the Managing Attorney for the firm’s PERM Labor Certification Department, where she oversees all EB-2 and EB-3 employment based green card matters. She also guides employers and individuals through the I-140 and Adjustment of Status process, assists clients with non-immigrant visa petitions (e.g. H-1B, TN, L-1, etc.), and advises her clients on I-9 compliance issues.