All U.S.employers are required to verify the identity and employment eligibility of all their employees, hired since 1986, via Form I-9, Employment Eligibility Verification. USCIS publishes a Handbook for Employers containing guidance for completing Form I-9.
Form I-9 is divided into three distinct sections. Part I is completed by employees on or before the first day of work and asks employees to provide information about their identity and immigration status. Part II is completed by the employer, or its designated representative, no later than 3 business days after the employee begins work for pay. Part II is the certification section where the employer physically examines the original documents provided by the employee and records required information, such as document title, issuing authority, document number and expiration date on the form. Parts I and II are completed for each Form I-9, whereas Part III is used in much rarer, re-verification situations only. Employers are mandated to retain completed Forms I-9 for their employees for three years, or one year from the date of employment termination, whichever is later.
U.S. Immigration and Customs Enforcement (ICE) is permitted by law to examine the Forms I-9 of an employer and issue fines, civil and/or criminal penalties for failing to complete, improperly completing, or failing to retain the required Forms I-9.
The fine schedule to the right, taken from the ICE website, sets forth the fine amounts for what is commonly called "paperwork violations." Failing to properly date the Form I-9, signing in the wrong place, failing to complete every section of the form are each common examples of paperwork violations that will trigger a fine. As the chart indicates, the higher the percentage of your workforce/Forms I-9 with a paperwork violation, the higher the fine per violation. For example, if you are a small business with 10 employees. You are aware of the requirement to complete and maintain Forms I-9 for each employee and when requested, you provide those forms to ICE for inspection. If ICE finds a technical "paperwork violation" on 3 of the forms presented (representing 30% of the forms presented), the business can be fined $1261 per violation, for a total of $3783. It is easy to see how the fine amounts can quickly grow.
In addition, if ICE concludes that your company "knowingly hired" an individual not permitted to lawfully work in the United States or "continued to employ" an individual not permitted to lawfully work in the United States, a different fine schedule, to the left, is used. These violations are more serious than technical, paperwork violations, and therefore carry a higher fine per violation. These violations also carry the risk of ICE seeking criminal penalties against the company or individuals if they are found to be involved in activities such as smuggling or harboring individuals or providing false documentation.
The fine amounts calculated using these schedules can be adjusted higher or lower based on the following factors: Is it a small business? Has the company acted in good faith to address the violations? Has the company taken the investigation and violations seriously and attempted to correct the violations? Did the company have unauthorized workers? Does the company have a past history of violations? These factors can either raise or lower the total fine amount 25 percent.
Contact the Law Offices of Michael Kohler, PLLC to assist with all of your employment verification issues. Together, we can insure your Forms I-9 are prepared, maintained, and retain properly. And if you become the target of an ICE investigation, I will be there every step of the way to mitigate your liability to the greatest extent possible.
