User:Sarah.elgalad/Form I-9

The I-9 Form is required for employers to fill out for most of their employees. The I-9 form’s intent is to verify the identity and employment authorization of individuals working in the United States. Section 274A(b) "of the Immigration and Nationality Act (INA), codified in 8 U.S.C. § 1324a(b), requires employers to verify the identity and employment eligibility of all individuals hired in the United States after November 6, 1986."^[1] U.S. employers must complete the form, which is required by The Immigration Reform and Control Act (IRCA).^[1] Employers do not have to complete the I-9 form for casual domestic workers that work sporadically, independent contractors, contractors doing contracting services, and employees not physically working on U.S. soil.^[2] The I-9 form must be filled out and signed within the first three days that a new employee is hired.^[2] Once an employee leaves or is fired, that I-9 form should remain with the business for at least three years from the first date of employment or one year from the date the employment ends, depending on which one is longer. There are a few different reasons that ICE would decide to inspect a business, such as a “credible tip, high-risk industry, history of violations, geographic area with concentration of undocumented immigrants, referral from another government agency, and public worksite observations.” ^[3]If ICE starts an audit process for a business, different steps are taken before a penalty is given.

           The first step is issuing a Notice of Inspection (“NOI”), which can either lead to a penalty or a warning notice. Prior to issuing the NOI, ICE agents will call the company first to obtain important information for issuance of the NOI. If a penalty is issued, it is called a Notice of Intent to Fine (“NIF”). Depending on the business (if it’s a small business or a big business), ICE may ask for different documents once the employer receives an NOI. In reference to a “large employer, the agency may elect to review only I-9 forms for current employees” or “may consist of a review of all forms.”^[4] ICE cannot ask to review I-9 Forms for an employer without first serving the NOI to the employer, informing them of their three days’ notice to respond. The NOI must be served “in person or by certified mail…[and] is generally preferred that the NOI be personally served by an ICE Special Agent.”^[4] Once the employer receives the NOI, they have at least three business days to hand over any I-9 form ICE requested to the agency.^[1] These documents are I-9 forms of employees but can also be payroll information, business documents, and/or a list of all employees that worked at the company within a certain time period.^[4] An NOI will contain information such as: “the name of the business that will be inspected, the date and time of the proposed inspection, a waiver of the three-day notice, and the time period covered by the inspection.”^[4]

Once an employer responds to ICE and hands over all required documents, ICE inspects the I-9 Forms.^[1] The purpose of the I-9 form inspection “is to identify any violations that might lead to criminal prosecution of an employer or identify either substantive or technical violations that might result in the issuance of an administrative fine or Warning Notice.” ^[4] ICE will compare payroll records to I-9 forms and determine if there are any paperwork violations or hiring violations. Paperwork violations can be errors in how the I-9 form was completed or the failure to complete an I-9 form in general.^[1] Hiring violations pertain to an employer knowingly employing or continuing to employ undocumented workers.^[1] ICE can also interview personnel at the business for any additional information they may need regarding the I-9 form inspection. It’s important that an employer does not delay providing ICE with the necessary documents because it can result in a violation of ICE's retention requirements.^[5]

After the inspection, two things may happen depending on whether the business was found in compliance or not with the I-9 form guidelines. If ICE finds the employer compliant, it will issue a compliance letter (or a Notice of Inspections Results)^[1]. This letter can be issued if ICE did not find any substantive or technical violations in the paperwork and if all employees working are legally allowed to work for the company.^[1]   However, if the employer is found to not be in compliance with I-9 Form guidelines, ICE can issue a penalty or a Warning Notice, which is left to the discretion of the local field office.^[6] If a Warning Notice is issued by ICE, the employer will receive charging documents, allowing the employer to fix outstanding issues.^[6] The charging document will also include a date for a follow-up inspection appointment where ICE will review all procedures put in place to fix previous issues they informed the employer about.^[6]

If a penalty is issued, ICE calculates the fine by the number of substantive violations/uncorrected technical or procedural failures and knowingly hire/continue to employ violations divided by number of I-9 forms that should have been presented for inspection (which is based on the total number of employees), and that equals the base fine amount.^[1] The percentage from the base fine amount will indicate if the employer falls on the lower range or higher range of the civil penalty fine amounts.^[1] 28 C.F.R. §85.5 details the maximum and minimum penalty amounts that ICE can issue depending on the date the penalty was assessed.^[7] For I-9 form non-compliance violations, the date of penalty assessment is the day the NIF is issued. If the penalty is assessed after 5/9/2022 for a paperwork violation under 8 U.S.C. 1324a(e)(5), the minimum ICE can issue is $252 (per relevant individual), and the maximum ICE can issue is $2,507 (per relevant individual).^[7] These penalties were just updated for 2023 if the penalty is assessed after 1/30/2023, the minimum per paperwork violation penalty is $272 (per relevant individual), and the maximum is $2,701.^[7]

Once the base fine amount is determined by ICE, the agency looks to five statutory factors to determine the total civil penalty fine amounts.^[1] The five statutory factors are business size, good faith, seriousness, history, and unauthorized workers.^[1] Each factor can affect the base penalty amount by being classified as an aggravating, mitigating, or neutral factor.^[1] An aggravating or mitigating factor can increase or decrease the base penalty amount by 5%, while a neutral factor does not increase or decrease the penalty amount.^[1] The good faith factor is based on the employer’s attempt to comply with I-9 paperwork requirements before ICE issued the NOI.^[8] If the employer is found to have attempted to comply with the I-9 paperwork requirements and was still found to be non-compliant, the good faith factor is either assessed in the penalty amount as a neutral factor or a mitigating factor for the employer.^[9] Even a low compliance rate cannot be assessed by ICE as bad faith or as an aggravating factor.^[10] In order to find bad faith, "there must be some evidence of culpable conduct beyond the mere failure of compliance."^[8] In order for an employer to benefit from the good faith factor, they must correct any technical or procedural mistakes ICE informed them of within a 10-day period after the ICE inspection is completed. The NIF is deferred from the employer until they are informed of the paperwork violations and given 10 days to correct the issues.^[9] However, if the employer does not correct the paperwork violations, they can be charged against them in the NIF. Once a NIF is issued, the employer has two options; they can either negotiate a settlement with ICE regarding the penalty amount or decide to start the process for an Office of the Chief Administrative Hearing Officer (OCAHO) Hearing before an Administrative Law Judge (ALJ) to contest the allegations set forth in the NIF.^[11]

Case law states that the purpose of the penalty is to “deter future violations and to encourage compliance with employment verification procedures" and that penalties at or near the maximum permissible should be reserved for the most egregious violations.^[12] In addition, OCAHO case law states that the complainant “has the burden of proof with respect to penalties” and “must prove the existence of an aggravating factor by a preponderance of the evidence.”^[13] Penalty calculations conducted by ICE are not binding on the ALJ, and the judge has the discretion to decrease or increase the penalty amounts as necessary. However, after the government has introduced evidence to meet its burden of proof, “the burden production shifts to the respondent to introduce evidence…to controvert the government’s evidence. If the respondent fails to introduce any such evidence, the unrebutted evidence introduced by the government may be sufficient to satisfy the burden.”^[10] The three main factors that affect penalty amounts and case decisions are good faith, seriousness, and history factors. The good faith factor was discussed above. The business size and unauthorized workers factors are straightforward in that if a business is a small business, it's assessed as a mitigating factor otherwise, it's assessed as a neutral factor. Also, if an employer employs an unauthorized worker, that is assessed as an aggravating factor, if not, this factor is assessed as neutral.

In addition, according to case law, the seriousness factor is evaluated on a continuum because not all paperwork violations are equally serious.^[14] For example, the complete failure to complete an I-9 form is among the most serious of paperwork violations and is warranted a higher penalty amount than errors or omissions in filling out the I-9 form.^[15] An ALJ's de novo review of the government's fine assessment "can lead to a determination that differing degrees of seriousness exist amongst the paperwork violations, which can result in different fine assessments for each count."^[16]

The history factor in the calculation of penalties is pretty straightforward in that if a company/employer does not have a history of previous violations, ICE assesses this as either a mitigating or neutral factor. However, case law clarified what was meant by previous violations. In order to "prove a history of previous violations, the complainant must establish that the respondent previously violated §1324a, that INS issued a NIF and filed a complaint against the respondent based on that violation, and that the respondent was afforded the opportunity for a due process hearing."^[17] Case law also stated that ICE could not prove a history of previous violations by a "prior 'warning notice' against the respondent because 'a warning notice' does not contain any formal judgment or admission regarding Respondent's liability for prior IRCA violations."^[17] Overall, a respondent's prior misconduct cannot be assessed as a violation for penalty aggravation purposes unless the respondent had an opportunity for a hearing that affords due process, which would usually take place in front of an ALJ.^[17] There was one case that held that "prior criminal convictions, even if immigration-related, do not constitute evidence of a 'history of previous violations.'"^[17]

IRCA was signed into law in 1986 by President Regan to address the rising issue of employment of undocumented immigrants and was seeking to prevent and/or reduce the future employment of undocumented immigrants.^[3] In 1990 Congress amended IRCA with the Immigration Act of 1990.^[3] President George H. W. Bush focused on "profile raids and arrests of undocumented workers in factories and meatpacking plants." Meanwhile, President Barack Obama shifted his focus to employer compliance with federal regulations.^[3] During President Obama's presidency, there was an increase in compliance audits, "specifically I-9 paperwork audits of employers increased four-fold."^[3] In 2009, ICE's Assistant Secretary, John Morton, announced that the "agency had issued Notices of Inspection to 1,000 employers that ICE will be auditing their hiring records to determine compliance with federal employment verification laws."^[18] The 1000 businesses selected were in the critical infrastructure field and were chosen based on investigative leads and intelligence because of their connection to public safety and national security.^[18] This increase in compliance audits resulted in an increase in civil and criminal penalties charged against employers.^[3] President Trump, on the other hand, prioritized "sweeping, and targeting individuals present in the United States without authorization, as well as their employers." President Trump's tougher stance on immigration resulted in "statutory increases for I-9 compliance and I-9 related discrimination violations, making I-9 paperwork violations riskier than ever before."^[3]