Even though the Immigration Reform and Control Act was enacted in 1986, many employers still fail to realize the importance of I-9 compliance or the impact it may have on their business. However, this should be their primary concern because of the broad range of I-9 compliance violations resulting in different penalties the U.S. Immigration and Customs Enforcement (ICE) can impose on them.
During the Trump administration, there has been an increase in employer investigations and audits, especially when it comes to industries that typically employ a large percentage of immigrants. Hence, in the current environment, immigration compliance is a business necessity. Organizations can prevent errors, identify areas for improvement, and minimize the risks of future violations and penalties only by establishing a comprehensive and effective compliance program.
Types of I-9 Compliance Violations
The purpose of ICE inspections is to identify violations that might lead to criminal prosecution as well as substantive or technical violations that might result in the issuance of administrative fines or warning notices. The federal government distinguishes between technical errors and substantive violations.
Examples of technical violations include:
- Failure to ensure an individual provides her Employee Name, address, or birth date in Section 1,
- Failure to ensure the individual dates Section 1 at the time employment begins,
- Failure to ensure a preparer and/or translator provide his or her name, address, signature, or date,
- Failure to provide the document title, identification numbers and expiration dates of proper List A documents or proper List B and List C documents in Section 2 or 3, but only if legible copies of the documents are retained with the forms and presented at the I-9 inspections,
- Failure to provide the title, business name and address in Section 2, or
- Failure to provide the date of rehire in Section 3.
The federal government must provide employers with at least 10 business days to correct technical violations after notification. If an employer fails to correct violations on time, it will be subject to fines.
Examples of substantive violations include:
- Failure to timely prepare or present the I-9,
- Failure to ensure that the individual provides his or her printed name in Section 1 of the Form I-9,
- Failure to ensure that the individual checks a box in Section 1 attesting to whether he is a citizen or national of the United States, a lawful permanent resident, or an alien authorized to work until a specified date,
- Failure to ensure that an alien authorized to work provides his or her alien number in Section 1, if the number is not provided in Section 2 or 3, or on a legible copy of the document that is retained with the I-9 form,
- Failure to ensure the individual signs the attestation in Section 1,
- Failure to complete Section 2 within 3 business days of hire,
- Failure to review and verify a proper List A document or proper List B and List C documents in Section 2 or 3,
- Failure to sign the attestation in Section 2,
- Failure to date Section 2 of the Form I-9,
- Failure to date Section 2 within three business days of the date the individual begins employment or, if the individual is employed for three business days or less, at the time employment begins, or
- Failure to sign and date Section 3 as well as to date Section 3 of the Form I-9 not later than the date of the expiration of the work authorization.
Form I-9 Penalties
U.S. employers have seen a significant increase in ICE I-9 inspections as part of the agency’s program intended to create a culture of Form I-9 compliance among employers.
Employers can be subject to civil and criminal penalties due to I-9 compliance violations. Civil fines for I-9 paperwork violations range from $224 to $2,236 per violation, depending on whether the employer has committed repeated violations. Penalties for knowingly hiring or continuing to employ an unauthorized worker range from $559 to $22,363 per worker. ICE can further increase penalty amounts if there are aggravating circumstances. Criminal penalties are possible if an employer has engaged in a pattern or practice of knowingly employing unauthorized workers or has committed other serious violations.
In determining penalty amounts, ICE considers five factors: the size of the business, good-faith effort to comply, the seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations.
Taking Necessary Steps to Remain Compliant
Although employer enforcement actions marked previous administrations as well, increased budget for the Department of Homeland Security, expanded E-Verify funds and enforcement-related hiring are a clear sign of the new administration’s renewed enforcement approach. Therefore, employers need to undertake necessary steps to prevent I-9 compliance violations and prepare for Form I-9 audits. Instead of viewing Form I-9 as a simple administrative formality, employers need to make sure to capture all the relevant employment authorization documents, standardize I-9 procedures across their organizations, stay up-to-date with federal laws and policies, and E-Verify, and conduct self-audits.
Finally, employers should consider automating their compliance process. Electronic I-9 software helps minimize risk with its control mechanisms, easy access to stored I-9 forms, automatic notification of employment authorization expiration dates, integration with E-Verify, and data security measures. I-9 presents many pitfalls for employers and, in light of recent enforcement activity, it is critical that employers comply with the regulations related to I-9 completion, storage, and retention. That is why automated I-9 systems are the optimum solution. They allow employers to prevent common and complicated mistakes made by manual verification processes, ensure a high level of compliance with I-9 and E-Verify laws and reduce hiring costs.