Does ICE have free range to decide penalty amounts for I-9 violations?

Luckily, the answer to this question is no. Under the Federal Immigration and Nationality Act, the appropriate amount of civil money penalties for I-9 violations includes the following factors: (1) the size of the employer’s size, (2) the employer’s good faith, (3) the seriousness of the violation(s), (4) whether or not the individual was an unauthorized alien, and (5) the history of previous violations. However, even though these factors are written into the statute, Immigration and Customs Enforcement ("ICE") may still argue for the maximum permissible penalties.

OCAHO (Office of the Chief Administrative Hearing Officer) recently decided a California case in which the owner of a landscaping business misunderstood the request for information during the ICE investigation. The owner presented ICE with newly created and backdated I-9 forms for his 25 employees instead of the original forms that were filled out at the time of employment because he incorrectly believed that 1-9 forms were to be filled out annually for each employee. When he presented the original I-9 forms to ICE, ICE charged the owner with violations of the original forms as well as the newly created ones totaling $26,881. ICE sought to charge the company with the maximum allowable penalties on the basis of the owner acting in bad faith and the presence of unauthorized aliens. The owner argued that he did not act in bad faith but, instead, failed to understand the procedure for the investigation.

OCAHO determined that penalties could only be assessed on the newly created I-9s, and not the original I-9s, since those were the forms presented to ICE in response to their records request. OCAHO also reduced the total penalty amount to $10,000, finding that ICE did not meet its burden of proving bad faith and, further, that an across-the-board penalty enhancement is not allowed based on the fact that some individuals were unauthorized.

The OCAHO decision can be found here. Judith Robinson Corporate Immigration Attorney THE MDIVANI LAW FIRM, LLC 7007 College Blvd., Suite 460 Overland Park, KS 66211 Phone: 913.317.6200 Fax: 913.317.6202 E-mail: JRobinson@uslegalimmigration.com