Increased Penalties for I-9 Violations Put Noncompliant Employers at Risk
Effective January 2, 2025, the Department of Homeland Security Immigration and Customs Enforcement (ICE) has increased penalties for Form I-9 violations and knowingly employing undocumented workers.
Employers can now expect to be fined a minimum of $288 up to a maximum of $2,861 for each I-9 violation. Knowingly employing an undocumented worker can cost an employer up to $5,724 for a first order, $14,308 for a second order, and $28,619 for a subsequent order.
An I-9 violation can include anything from accepting a document that is not on the Acceptable Documents list (https://www.uscis.gov/i-9-central/form-i-9-acceptable-documents) to failing to complete the Form I-9 within three days of the date on which the employee begins work. Failing to revalidate a List A Employment Authorization Document (EAD) before the date of its expiration is another common mistake employers make. These may seem like small oversights, but ICE can view them as culpable violations of the law worth close to $3K.
Form I-9 can be a tricky trap for small to medium sized businesses. Many owners are familiar with their employees or friends and family members of employees in the community. Without a large, impersonal personnel department it is easy to give an employee the benefit of the doubt when they explain the lack of a document on the list or try to convince an HR rep why their seemingly expired document is still valid. When other employees are vouching for an employee and the labor market is tight it is all too tempting to gloss over Form I-9 and spin the narrative into something resembling compliance, or to delay or forgo Form I-9 altogether. This is a costly mistake, and the costs keep adding up for every Form I-9 that does not conform to the law’s strict boundaries.
One way to reduce the potential financial hit is to conduct regular internal I-9 audits. Having a designated individual review all Forms I-9 (which should be kept together in an I-9 file that can easily be presented to ICE in case of an audit; NOT placed in personnel files) and right the wrongs is one way to avoid paying the maximum penalty when ICE comes calling. Err on the side of caution, because the Department of Homeland Security has announced devoting more resources to ICE audits and enforcing I-9 compliance in the past two years. Keeping your Form I-9 file in a condition suitable for ICE to review should be a top priority. It is also essential to treat all employees fairly, equally, and consistently, regardless of national origin. Do not allow a fear of I-9 compliance lead to a discrimination claim. If you keep copies of supporting documents for one employee, keep supporting documents for all employees. You are not required to keep copies of supporting documents, but if you do, it must be everyone or no one.
Navigating the process of I-9 compliance from the date of hire to the date of a potential audit may seem overwhelming and complex. It does not have to be. Expert legal counsel can help you avoid racking up those newly increased fines. Any questionable supporting documents should be reviewed by an attorney to avoid reliance on a document outside of the list of Acceptable Documents, a definite high penalty-incurring violation. Employers may be confused by the automatic extension dates affecting expired EADs for certain groups of refuges and asylees and fear treading the line between knowingly employing an undocumented worker (incurring a penalty of nearly $6K) and exposing themselves to a national origin discrimination lawsuit (potentially resulting in a payout of at least six figures). An experienced employment law attorney can navigate that treacherous territory for an employer and advise on proper I-9 compliance that will pass both ICE and EEOC scrutiny.