As regularly reported in the news, the crackdown on employers by the federal government continues. If your company is targeted and I-9 violations are discovered, fines for simple paperwork violations, even if no undocumented workers are discovered, will range from $110 to $1,100 per I-9 Form depending on the severity of the errors. Penalties for knowingly hiring or continuing to hire undocumented individuals range from $375 to $16,000 per individual. In addition, the company owner, managers and human resources professionals can be held criminally liable for certain infractions.
On January 20, 2015, the Office of the Chief Administrative Hearing Officer (OCAHO), the administrative court with jurisdiction to review penalties for I-9 violations, issued a decision in the matter of USA v. Employer Solutions Staffing Group II, LLC, ordering the company to pay a civil penalty in the amount of $226,270. Notably, the company admitted that, according to its standard operating procedures, it completed the attestation in Section 2 without reviewing copies of the employees’ documents. This is in violation of the I-9 requirement to physically examine documents from the acceptable documents list before signing the attestation under penalty of perjury. Despite the company’s enrollment in E-Verify and the lack of unauthorized workers, the audit resulted in the significant fine amount due to the company’s failure to follow the proper procedure for completing Section 2 of the form. OCAHO rejected E-Verify enrollment as a defense, because the first requirement of the E-Verify system is to properly complete a form I-9.
The penalty in the Employer Solutions Staffing Group II case was not for the failure to sign or complete Section 2, but for the company’s systematic false attestations in Section 2 of 242 I-9 forms. Employers must comply with procedural and substantive I-9 requirements, without regard to the use of E-Verify. The above case underlines the importance of having a proper I-9 procedure in place and having it regularly re-examined, preferably by someone outside of your organization who can bring in a fresh and unbiased perspective.
It is important to have an established procedure for handling government audits of your I-9 Forms and to contact experienced immigration counsel even before becoming the subject of an audit. Our firm provides a variety of services related to I-9 compliance, including voluntary audits and training, as well as representation in connection with enforcement audits by ICE. We have represented and advised employers in multiple industries with relation to I-9 compliance, including hospitality, restaurant, landscaping, production, retail, staffing, manufacturing, higher education, service provider, and financial industries.