Time to Get Serious About I-9 Compliance: Part 1
The Trump Administration has given the directive to hire 10,000 new ICE (Immigration and Customs Enforcement) agents to keep employers and their hiring practices in check, while penalizing, and possibly arresting, those who violate I-9 regulations. With that many new agents on board, it is easy to see how the plan to conduct up to 15,000 I-9 audits this year can be done. 1
In a year where worksite investigations have already surpassed the number of investigations for all of 2017, 2018 may just be the harbinger of the new status quo. Not only have investigations doubled, but arrests associated with those investigations have quadrupled! Most of those arrested were workers, but it is still not clear if any employers were arrested. 1
Investigations typically start one of the following ways: a Notice of Inspection (NOI) is received by the employer; a tip has been received by law enforcement; or, in conducting a different investigation for a possible violation, an employer’s I-9 process becomes suspect. To give you an idea just how serious these investigations are, consider that in fiscal year 2017, “employers were ordered to pay $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines.” 1 See below the process for inspections. If you click on the source link below the illustration, you will be able to see the 2017 penalty matrices. 1
Source: https://www.ice.gov/factsheets/i9-inspection#fineSchedule
Upon completion of their investigation, if ICE finds 10% or less errors, the employer will usually receive a warning and no penalty. Errors equaling over 10%, along with evidence that the employer consistently hired and/or continued-to-employ illegal workers, can mean stiff fines. Additionally, ICE has added paperwork violations to the hiring and continuing-to-employ violations, which means that penalties can be driven upwards exponentially. 2
To understand how quickly the penalties can go up, consider the example below.
XYZ Company is considered to be a First Tier (first time violator) employer. The company has 50 total employees and are discovered to have 20% in paperwork violations and 20% in hiring or continuing-to-employ violations. That means a total of 40% errors, representing 20 employees. The penalty for 40% or more total errors is $3,069 per employee, which means total penalties of $61,380! 3
Once substantive violations have been identified, a Notice of Intent to Fine (NIF) is issued by ICE. “The penalty amount is determined by ICE attorneys and special agents in charge.” Within 30 days of receiving an NIF, employers can challenge the fine by requesting a review by an administrative law judge from the Office of the Chief Administrative Hearing Officer (OCAHO). If it gets to the litigation point, judges can adjust the penalty up or down, depending on other factors. 2
Compliance with I-9 regulations is key to avoiding and/or being able to “survive” an ICE inspection. Next month, we will conclude this two-part blog by discussing briefly more about ICE’s penalty calculation, best practices and a checklist to use when completing the I-9 for a New Hire
Until next month!
Carol Schoff, SHRM-CP,PHR
Director of HR & Benefits
1 https://www.shrm.org/ResourcesAndTools/hr-topics/talent-acquisition/Pages?ICE-Planning-Surge-I9-Audits-This-Summer-FY2018.aspx
2 https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/how-does-ice-calculate-form-i9-penalties.aspx
3 https://www.ice.gov/factsheets/i9-inspection#fineSchedule
