I-9 Fines, Penalties and Enforcement

Employer Duty to Complete and Retain Forms I-9 for All Workers

The employer must complete a I-9 Form for each new hire within three business days of the hire, and each separate failure to properly prepare, retain, or produce the original I-9 forms upon request constitutes a violation. In the case of former employees, retention of Forms I-9 are required for a period of at least three years from the date of hire or for one year after the employee is no longer employer, whichever is longer.

The original Forms I-9 must be available for inspection within business 3 days of notification. If an employer refuses to produce Forms I-9 after being provided three days notice, ICE will seek to compel production by subpoena.

Verification violations are defined as any paperwork or procedural errors that occur within the Form I-9 employment eligibility verification process. Verification violations are classified as either technical or substantive.

Knowingly Hire & Continue to Employ Unlawful Employment Violations

A “knowingly hire” violation requires evidence the employer knew of the alien’s unauthorized status at the time of the hire. If the employer learned that the alien was unauthorized after the alien was hired, the employer will be charged with “continuing to employ” (i.e., knowing the alien is or has become unauthorized to work for the employer).

Actual knowledge the employer in fact knew that the alien was not authorized to work but nevertheless employed the alien may be imputed to the employer where an officer, supervisor, or manager of the employer had knowledge even if the employer did not.

Constructive knowledge will establish the employer’s requisite knowledge the alien was unauthorized to work where the employer should have known. Constructive knowledge is knowledge that may be fairly inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition.

Immigration and Customs Enforcement (ICE), the enforcement agency within the Department of Homeland Security, or a state or federal Department of Labor inspector, can review the employer’s Forms I-9.

Form I-9 Errors & Violations Result in Civil Fines and Criminal Penalties for Unlawful Employment of Aliens and Unauthorized Workers

Employer I-9 liabilities and I-9 penalties include civil penalties which can amount to millions to dollars and are assessed for each an error on each Form I-9 or on a per occurrence or per employee basis. Penalties for FormI-9 violations can include criminal penalties and imprisonment.

I-9 violations can result in asset forfeiture, forfeiture of profits gained by employing illegal aliens, and debarment or disqualification from participating in federal programs and contracts.

Individual employees are held liable for Form I-9 errors and violations, in addition to corporate or company liability. People go to jail for serious Form I-9 violations. Executives, officers, plant managers, supervisors and human relations supervisors are liable for Form I-9 violations.

Monetary Penalties for Form I-9 Violations

Failure to complete, retain, or present for inspection Forms I-9 may be fined not less than $110 and not more than $1,100 for each person for whom the Form I-9 was not properly completed, retained, or presented.

Monetary Fines for Form I-9 Knowingly Hire or Continue to Employ Violations

Employers determined to have “knowingly hire” or “continuing to employ” violations, i.e., substantive Form I-9 violations, are assessed steep fines and penalties for unlawful employment of unauthorized workers.

In determining the civil monetary penalty for unlawfully employing the alien worker ICE applies its I-9 fine schedule. There is a range for fines depending on whether it is a first, second or third offense. ICE divides the number of knowing hire and continuing to employ violations by the number of employees for whom a Form I-9 should have been prepared to obtain a violation percentage. This percentage provides a base fine amount depending on whether this is a First Tier (1st time violator), Second Tier (2nd time violator), or Third Tier (3rd or subsequent time violator) case. The standard fine amount listed in the table relates to each knowing hire and continuing to employ violation.

Monetary Fines for Form I-9 Substantive and Uncorrected Technical Violations

ICE divides the number of violations by the number of employees for whom a Form I-9 should have been prepared to obtain a violation percentage. This percentage provides a base fine amount depending on whether this is a first offense, second offense, or a third or more offense. The standard fine amount listed in the table relates to each Form I-9 with violations. The penalty schedule is as follows:

Enhancement Matrix

The following matrix is used to enhance or mitigate the recommended fine contained on the Notice of Intent to Fine.

Enhancement Matrix

Criminal Penalties for Form I-9 Violations and Unlawful Employment of Aliens – Form I-9 Violations

Criminal Penalties for Unauthorized Employment Act of 2010, Raises Fines & Penalties (Proposed in Congress 2/22/2010)

Civil Penalties for Unauthorized Employment Act of 2010, Raises Fines & Penalties (Proposed in Congress 2/22/2010)