ICE Exercises a Favorable Decision in I-9 Violation Case

Immigration Success Story: I‐9 Visa ICE Exercises a Favorable Decision in I‐9 Violation Case Immigration and Customs Enforcement (ICE) and their crackdown on proper I‐9 and worker documentation for employers have been a common theme in many of my blog posts and e‐newsletter reports as of late. ICE expects to conduct 3,000 worksite audits in FY2012 and 2013, including large employers to create a culture of compliance. Any, or several, local employers could be next. These audits can be time consuming and fines devastating for any business, but particularly for small businesses struggling in an environment of declining resources and high turnover.

Employers with a workforce comprised of primarily U.S. citizens are not free from I‐9 problems and liability. We recently settled a case for a client whose workforce was primarily U.S. citizens and only two foreign nationals. They faced sizeable fines and penalties as a result of a failure to complete and retain I‐9 forms. Company X received a Notice of Suspect Documents from ICE following an audit of employees’ work authorizations. The notice informed the company that an employee might be unauthorized to work, and fines associated with such a violation. The inspection also yielded findings by ICE that Company X failed to complete or improperly completed I‐9 forms for some current and past employees, and a Notice of Intent to Fine was issued.

I prepared an argument on behalf of Company X that fines should be reduced based on the following factors: the size of the business; the good faith of the employer; the lack of seriousness of the violation; and the absence of prior violations. Although the business did fill out many I‐9 forms incorrectly, they did not do so intentionally but rather out of lack of good I‐9 training and education. Company X’s I‐9 errors were primarily technical, such as not dating a signature or placing an entry on the wrong line, as opposed to substantive. In addition, all errors and missing forms were corrected.

Based on the evidence submitted, we reached a positive settlement agreement in which the fines originally assessed were significantly diminished. All employers need to be concerned about I‐9 compliance. Take steps now to reduce your liability.