Employers know they must confirm the identity and work authorization of each new hire by completing a Form I-9.  The Form I-9 is complex, and failure to properly complete it can lead to the imposition of hefty fines by Immigration and Customs Enforcement (“ICE”) and the federal Department of Justice, Immigrant and Employee Rights Section (“IER”).

Immigration and Customs Enforcement

ICE enforces compliance with the Immigration Reform and Control Act of 1986 (“IRCA”), most commonly through Form I-9 audits. ICE initiates an audit by issuing a “Notices of Inspection” to the employer, which give the employer three days to provide Forms I-9 for active and recently terminated employees, as well as related documents. ICE reviews the documents and identifies errors, which may be technical or procedural (e.g., a missing or incorrect date of hire), or substantive (e.g., missing documentation.) Employers may remedy technical or procedural errors within 10 business days, but any unresolved technical errors become a substantive error, which can result in monetary penalties.

The fines increase annually to adjust for inflation, which gives ICE the authority to deter employers from disregarding their obligations. As of October 2021, the fines for substantive violations range from $237 to $2,360. Because ICE assesses these fines per Form, the penalties add up quickly. Take, for example Barajas Mexican Grill, a small restaurant with only 24 employees. Following a Form I-9 audit in 2017, ICE issued a $46,922 fine. Even though the Office of the Chief Administrative Hearing Officer subsequently reduced the fine to $34,872, the employer still ended up paying $1,453 per violation.

The Federal Department of Justice – Immigrant and Employee Rights Section

Although most employers are familiar with ICE’s steep fines for paperwork violations, they are less aware of the significant consequences the IER may impose. The IER enforces the provisions of the Immigration and Nationality Act (“INA”), which prohibits citizenship status discrimination, national origin discrimination, unfair documentary practices during employment eligibility verification, and retaliation or intimidation. The law prohibits employers from, for example, requiring specific documents or limiting the documents an employee presents. This prohibition includes suggesting that employees provide a particular document, such as reminding new hires to bring their passport, or a driver’s license and Social Security Card with them on the first day of work to complete the Form I-9.  Requiring documents when they are not required and requiring more documentation than necessary to certify the Form I-9 also may constitute discrimination.

In August 2021, for instance, the IER reached a settlement agreement with Ascension Health Alliance for $84,832 in civil penalties in response to the company’s practice of requiring all non-U.S. citizens to update their work authorizations before they expired, even if the employees previously presented documents that did not need to be re-verified, such as a Permanent Resident Card. Similarly, in December 2021, the IER reached an agreement with Microsoft for similar reasons, and in response to allegations that during the interview process, the company unnecessarily requested non-U.S. citizens to provide specific documents to prove they did not require sponsorships for work visas. Although these employers likely did not intend to discriminate against candidates and employees based on citizenship status, their actions resulted in significant consequences.

Prevention

ICE and the IER are committed to Form I-9 compliance.  On October 12, 2021, Department of Homeland Security Secretary Alejandro N. Mayorkas issued a memorandum addressing ICE’s worksite enforcement strategy, which includes, “reduc[ing] he demand for illegal employment by delivering more severe consequences to exploitative employers and their agents,” and “broaden[ing] and deepen[ing]” coordination between the Department of Homeland Security, the Department of Labor, the Department of Justice, and the Equal Employment Opportunity Commission, the National Labor Relations Board, and state labor agencies. As these agencies ramp up enforcement, employers should take steps to avoid or minimize ICE’s and the IER’s penalties.

First, employers must implement processes to properly complete and maintain Forms I-9 for all employees.  These processes should include how to verify work authorization documents upon hire and expiration and the best practices for retaining Form I-9s after an employee’s separation.

Employers also must provide appropriate training to all employees responsible for properly completing Form I-9s.  The Form I-9 is deceptively simple on its face.  Employees entrusted with I-9 compliance should understand how to appropriately correct errors, what steps to take when an employee cannot provide required documentation, and how to respond to an agency’s request for Form I-9 documentation, among other aspects of Form I-9 administration.

Finally, employers should periodically review all Forms I-9 for compliance, with a fresh eye toward identifying past errors and omissions, and then take the time to properly correct any identified mistakes. ICE will view a failure to identify and correct such errors as an ongoing violation, and fine employers at the current penalty range even if the error happened in the past when penalties were lower.