How to Avoid I9 Fines and Penalties
On November 6, 1986, the enactment of the Immigration Reform and Control Act required employers to verify the identity and employment eligibility of their employees and created criminal and civil sanctions for employment related violations. The Employment Eligibility Verification Form I-9 (Form I-9) is the means of documenting this verification. I-9 forms are required by law to be maintained for inspection for all current employees and employees who are no longer with the company for a time period of three years. The administrative inspection process is typically initiated by the service of a Notice of Inspection (NOI). By law, employers are provided with at least three business days to produce the Forms I-9. Often, ICE will request the employer provide supporting documentation, which may include a copy of the payroll, list of current employees, Articles of Incorporation, and business licenses. ICE agents or auditors then conduct an inspection of the Forms I-9 for compliance.
A new version of the I-9 form was released September 18, 2017 with an expiration date of August 31, 2019 and applies to new hires only. Existing hires do not need to complete a new form since the current storage and retention rules have not changed. A new 15-page set of instructions is available for the form, and an updated Handbook for Employers, a valuable resource for those handling Form I-9 issues, is available on the USCIS website. Click here for that document. https://www.uscis.gov/i-9-central/handbook-employers-m-274
Monetary penalties for knowingly hireing and continuing to employ violations range from $375 to $16,000 per violation, with repeat offenders receiving penalties, at the higher end. Penalties for substantive violations, which includes failing to produce a Form I-9, range from $110 to $1,100 per violation.
The most common types of notices received from the ICE are as follows:
Notice of Inspection Results – also known as a “compliance letter,” used to notify a business that they were found to be in compliance.
Notice of Suspect Documents – advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has determined that an employee is unauthorized to work and advises the employer of the possible criminal and civil penalties for continuing to employ that individual. ICE provides the employer and employee an opportunity to present additional documentation to demonstrate work authorization if they believe the finding is in error.
Notice of Discrepancies – advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has been unable to determine their work eligibility. The employer should provide the employee with a copy of the notice, and give the employee an opportunity to present ICE with additional documentation to establish their employment eligibility.
Notice of Technical or Procedural Failures – identifies technical violations identified during the inspection and gives the employer ten business days to correct the forms. After ten business days, uncorrected technical and procedural failures will become substantive violations.
Warning Notice – issued in circumstances where substantive verification violations were identified, but circumstances do not warrant a monetary penalty and there is the expectation of future compliance by the employer.
Notice of Intent to Fine (NIF) – may be issued for substantive, uncorrected technical, knowingly hire and continuing to employ violations.
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