Increased Fines for Form I-9 Violations


Emptech's founder, Jeff Aleixo


Jeffrey Aleixo

Form I-9 compliance, increased fines, electronic Form I-9 management

Every employer needs to verify the identity and employment authorization of all hired workers by completing Form I-9 and reverifying work authorization when required. However, immigration compliance and Form I-9 record-keeping require diligence by employers. Otherwise, they may face significant risks of fines or trigger potential inspections. This is even more important in light of increased fines for Form I-9 violations recently released by the Department of Homeland Security (DHS).

According to the official announcement, the new fines will be effective for penalties assessed after October 18, 2021, for associated violations that occurred after November 02, 2015. Therefore, employers have to pay very close attention to their current policies and procedures to completely eliminate or reduce the chances of Form I-9 violations.

Adjustments of Form I-9 Violations for 2021

On October 18, 2021, the DHS announced the annual inflation adjustments to a wide variety of civil monetary penalties, including fines for Form I-9 violations. These increases are pursuant to the Federal Civil Penalties Inflation Adjustment Act of 2015. According to the Act, penalties are adjusted yearly based on the rate of inflation.

The increased penalties for Form I-9 violations cover:

Civil penalties for I-9 paperwork violations

  • The minimum penalty has increased from $234 to $237, and
  • The maximum penalty has increased from $2,332 to $2,360.

Civil penalties for knowingly hiring, recruiting, referral, or retention of unauthorized aliens

  • The penalty for the first offense has increased from $583-$4,667 to $590-$4,722,
  • The penalty for the second offense has increased from $4,667-$11,665 to $4,722-$11,803, and
  • The penalty for the third or subsequent offense has increased from $6,999-$23,331 to 7,082-23,607.

As a result, Form I-9 violations can now be even more costly than before, making it necessary for employers to ensure full compliance with Form I-9 rules and procedures. To do this properly, they should frequently evaluate the company’s hiring processes and procedures, record retention and storage policy, review the company’s I-9 documents for technical, procedural and substantive errors, and lawfully correct errors on Form I-9, if necessary.

With the help of this detailed guide, you can learn how to avoid Form I-9 substantive and technical violations while ensuring constant I-9 compliance.

Recent Immigration Policy Changes

Before the COVID-19 pandemic, employers were required to physically inspect employees’ identity and employment eligibility documents, unless they operated remotely. However, due to the pandemic, the DHS allowed employers to examine documents remotely through an electronic medium

On August 31, 2021, this Form I-9 flexibility policy was extended to December 31, 2021, and not long after this, the DHS published a 60-day request for public input. Thus, employers can express their opinions regarding pandemic-related document examination flexibilities and considerations for future remote document examination procedures. 

In addition to this, DHS Secretary recently issued a memorandum announcing that the new administration would end the Trump administration’s implementation of worksite raids aimed at catching unauthorized workers. Instead of this, the Biden administration will aim to punish those employers who hire unauthorized workers and fail to comply with U.S. labor and immigration laws. Consequently, employers should take proactive steps to ensure compliance as soon as possible.

Finally, U.S. Citizen and Immigration Services (USCIS) announced an automatic extension of employment authorization document (EAD) validity will be granted to certain H-4, E, and L dependent spouses. USCIS will also modify Forms I-94 so that E and L dependent spouses are considered as employment authorized incidents to their valid E or L nonimmigrant status. As a result, they are no longer required to file Form I-765 to request employment authorization

Preventing Common Mistakes Resulting in Form I-9 Violations

Managing Forms I-9 can be time-consuming and complex, and some of the most common mistakes during this process include incomplete or incorrect form sections, failure to provide or verify supporting documentation, missed filing deadlines, forgetting to reverify, and more. Furthermore, if employers are found to violate the verification and employment eligibility requirements and issued a Notice of Inspection, they may be subject to criminal and civil sanctions.

To prepare for potential investigations and prevent higher fines for Form I-9 violations, employers should take several steps. To begin with, they need to implement a Form I-9 internal audit at least every six months to ensure compliance and determine if it is necessary to conduct I-9 compliance training for employees. Also, employers should have a policy in place for maintaining Forms I-9 of terminated employees within the required timeframe and destroying them when permitted. In the event of an ICE investigation, violations can be substantial, but good faith efforts for compliance may help mitigate the potential penalties. Therefore, employers should have an internal protocol in place for responding to legal processes. Finally, to streamline compliance and avoid Form I-9 violations, employers can use appropriate electronic I-9 management solutions. As a result, they can minimize the risk of errors and maximize compliance with I-9 completion, storage, and retention rules.

Rely on an electronic I-9 solution to prevent common mistakes and violations while ensuring compliance with immigration laws, rules, and regulations.
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