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I-9 non-compliance fine reduced from $311,300 to $88,700

A small restaurant in Rochester, NY was found to have 283 I-9 form violations and faced a maximum penalty of $311,300.00 Because of its small size, the absence of illegal workers, and lack of previous violations, ICE  reduced its proposed fine by 15%, but also requested a 10% enhancement because of the employer’s alleged bad faith and the seriousness of the violations. On January 15, 2014, the Office of the Chief Administrative Hearing Officer for the US Department of Justice, Executive Office for Immigration Review(OCAHO) held that penalties close to the maximum permissible should be reserved for the most egregious violations and reduced the fine to $88,700. While that is a substantial reduction, an $88,700 fine would undoubtedly cripple most small businesses if not put many of them out of business.

ICE enforcement efforts regarding I-9 forms is at an all time high. In 2012, ICE imposed $12,475,575 in administrative fines compared with $0 fines imposed in 2006. There are dozens of mistakes can be made during the I-9 completion process. Error rates often run as high as 90%, even in companies that make I-9 compliance a priority.

Companies that conduct voluntary audits may be able to protect themselves by using the “good faith defense” assuming they are able to correct and remedy any violations uncovered in the audit. This recent case is a good reminder of why a voluntary audit might be crucial to your business’ future existence.  Attorneys who focus their practice on employment law and/or immigration law can help you protect your business.

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