IMMIGRATION ISSUES: Report Confirms Employer Fines for Lack of I-9 Compliance Have Skyrocketed

Contributed by Aaron Hall, Senior Attorney

Immigration and Customs Enforcement (ICE) enforces compliance with I-9 completion and retention requirements with administrative inspections of employers’ I-9 forms, initiated either from complaints received by the ICE tip line or from internal initiatives. During the inspections, ICE looks for substantive and technical violations and will issue one of three dispositions:

(1) Compliance: No technical or substantive violations in paperwork and no unauthorized workers are identified, or technical paperwork violations are corrected in a timely manner (adjusted compliance).

(2) Warning: Violations are identified, but there is the expectation of future compliance by the employer.

(3) Fine: The employer has not acted in good faith and has substantive paperwork violations (usually, more than 50 percent of I-9 forms include substantive errors), which warrant a fine.

If ICE decides to impose a fine, it will receive a Notice of Intent to Fine. The employer can attempt to negotiate a lower fine or may request a fine reduction with an administrative law judge.

According to a recent report from the Office of the Inspector General, between 2009 and 2012, almost a third of all inspections originating from the Denver ICE Office resulted in fines. Nationally, $31.2 million in fines were issued by ICE between 2009 and 2012. The $31.2 million total dwarfs the total of $1.5 million for fiscal years 2003 through 2008. This is due to ICE’s 2009 implementation of a new strategy focusing on employers.

ICE’s focus on enforcement through heavy employer fines is expected to continue. If you have received a notice that ICE will be conducting an inspection or a Notice of Intent to Fine, contact our office as early in the process as possible to try to reduce any fines you may receive. If you have not received any notice of an ICE audit but think that your I-9s may not be properly completed or retained and would like advice on how to minimize liability and ensure future compliance, contact us for a consultation.