4 Considerations for Form I-9 Penalty Calculations

  • By: Staff Editor
  • Date: May 30, 2018
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4 Considerations for Form I-9 Penalty Calculations

Accuracy in Form I-9’s continues to grow in importance before, during and after the employment relationships.  Anyone that has taken my SHRM Certification Exam Prep Course or has worked with me on an HR or Form I-9 audit, knows how important I believe accuracy in the Form I-9’s is and the record keeping associated with the documentation.  The Immigration and Customs Enforcement (ICE) agency continues to conduct more audits and inspections associated with these forms.  This is not the only governmental agency that can inspect and audit Form I-9’s.  As employer’s we need to ensure our records are accurate from start of the new hire process and beyond finish in the employment relationship.


Below are the links for upcoming training’s both in person and online webinars:

Form I-9 and E-Verify Getting and Staying Compliant

The 4 considerations with Form I-9 penalty calculations:
In November 2008, ICE issued a memorandum which required ICE agents to follow specific procedures for calculating paperwork, hiring or continuing-to-employ fines. The policy procedures stated the following for agents to determine the level of fine:

  1. Use the number of violations of each type (paperwork, hiring or continuing-to-employ) as the numerator and the number of total employees as the denominator. For example, if you have 100 employees with 10 substantive paperwork violations and 20 hiring or continuing-to-employ violations, you'd have 10/100 = 10 percent for paperwork and 20/100 = 20 percent for hiring or continuing-to-employ violations, leading to a fine of $40,560 using the 2017 penalty matrices
  2. The fines could then be adjusted up or down 5 percent for each of five factors—business size, good faith, seriousness, employment of unauthorized aliens, and prior history with ICE.
  3. Form I-9 Inspection Process
  4. Inspection Process
  5. Determination of Recommended Fine (Easier to view on the website below)
  6. Recommended Fine

Other Employer Considerations:

  1. Are the fines calculated within the confines of the statute as updated by the Department of Justice?
  2. What baseline and method did ICE use to calculate the fine?
  3. What factors were used to elevate or reduce the level of the fine?
  4. Were the factors appropriately used?
  5. Did ICE apply the 5 percent enhancement for employment of unauthorized aliens to only those violations, or did agents apply the enhancement to all violations?
  6. Did the NIF miscalculate the fines by double-counting violations?
  7. Did ICE make other errors in its calculations?


Form I-9 Inspection Overview

Hopefully none of us need to worry about I-9 inspections or fines associated with incorrect or incomplete forms. However, knowing what the process looks like and how the fines are calculated is a good reminder for all organizations to conduct an internal Form I-9 to identify any areas of liability. A construction company was recently penalized $228,000 for multiple compliance violations…submitting I-9 forms for dozens of employees with incomplete Sections 1 and 2….Unfortunately for an event-planning company, a simple, repeat error ended up costing them big. The company neglected to ensure that Section 2 of the I-9 included each employee's signature, along with additional incompletions. In total, it was found that they were responsible for more than 800 violations. And the total fine? A whopping $605,250 ...Another national staffing company did not have the correct person signing for its remote workers, which resulted in a $227,000 fine. Be proactive in your approach; ensure the forms are filled out accurately, completely and legally. Seek guidance if you are unclear on what to look for during a review.

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