U.S. Department of Homeland Security (DHS) Increases Fines for Form I-9 Violations

On October 18, 2021, U.S. Department of Homeland Security (DHS) announced that the monetary fines assessed against U.S. employers for Form I-9 violations have increased to keep pace with inflation. For employers who fail to properly complete, retain, and/or make Forms I-9 available for inspection as required by law, the punishments imposed for violations can result in sizable monetary fines and civil penalties. To avoid the minefield of I-9 errors and omissions, employers are encouraged to develop I-9 protocols and perform regular self-audits as proactive measures to ensure compliance. In the event of an ICE audit, employers should immediately seek experienced immigration counsel when responding to investigation requests and navigating these important proceedings.

The purpose of Form I-9 to verify the identity and employment authorization of individuals hired for employment in the United States. The Immigration Reform and Control Act of 1986 (IRCA) was established to prevent the employment of unauthorized workers by U.S. companies. As part of this Act, employers bear the burden of inspecting documents provided by new employees to confirm lawful employment authorization and must properly complete and maintain an I-9 record for each employee.

By law, all U.S. employers must properly complete Form I-9 for each worker, including citizens and noncitizens alike. Both employees and employers share responsibility when completing the form. The employee must attest to his or her lawful permission to work in the United States and present acceptable documents evidencing identity and employment authorization. Next, the employer must examine the original document(s) provided by the employee to determine whether the document(s) reasonably appear to be genuine and to relate to the employee. After inspecting the original documents, the employer or their authorized representative must record the document information on the Form I-9. This process must be properly completed and documented within 3 days of the new hire’s first day of work for pay.

Seemingly innocuous, the two-page I-9 is often improperly completed or skipped altogether, which can result in staggeringly punitive civil fines and penalties. Employers who fail to conduct internal audits or to properly train and supervise the preparation and maintenance of the form expose themselves to significant risk. In the event of an I-9 inspection, U.S. ICE serves a notice, which then requires the employer to provide all required I-9 forms and related documentation for inspection within three business days. Upon review, the inspecting ICE official reviews the records for technical or procedural errors and to identify any violations. In the event of substantive violations, especially in instances of repeated errors or omissions, the cumulative fines assessed can be staggering. For example, the current civil penalty range for I-9 paperwork violations can range from $237 – $2,360 per violation, regardless as to whether the employee is authorized to work or not.

With the stakes so high, employers must pay close attention to and ensure proper I-9 compliance and record-keeping and should seek professional counsel when developing a plan. Brown Immigration Law offers legal services to employers with respect to I-9 matters, from proactive compliance assistance to representation during ICE proceedings, audit responses, and requests for mitigation. While some errors may be corrected and fine amounts partially reduced, employers can avoid the significant stress and expense presented by I-9 violations by developing policies to mandate internal procedures to ensure that I-9 forms are properly completed, verified, maintained and readily accessible.

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