Everyone is familiar with the I-9 form, and for many employer, it seems unduly burdensome and they treat it as a formality – as long as the person has the right documents, whether the form is fully complete or not doesn’t really matter,. However, according to our law, and, in some ways more importantly, ICE and our Courts, it does matter quite a bit. 8 USC §1324a(a)(1)(B) makes it a violation of law for simply failing to complete the I-9 form fully, regardless if the person you are hiring is actually authorized to work or not, regardless if they area a citizen or an illegal alien. And in case you think that Immigrations and Customs Enforcement, the agency that enforces this through site visits, would allow inconsequential, or small errors slide, here is one case that you may be interested in.
Niche Inc. a company that produced goods for our Department of Defense was audited this year by ICE. ICE found 177 violations of the above statute. Most of the violation were for I-9 forms that were incomplete, but on file, some were for I-9 forms that were completed late, and 1 was for having no I-9 on file. It should be noted that there was NO allegation that any of the workers were not allowed to work, as they all were. The only issue was the lack of complete (or missing) I-9s. ICE determined that the company should pay $888.25 per violation, which came to a total of $157,220.25. Not an inconsiderable amount, especially considering the crime.
The company did appeal this decision to OCAHO (Office of the Chief Administrative Hearing Officer) who is the final arbiter of such disputes. OCAHO lowered the fine to $66,850 ( a fine of $600 for one failure to prepare and I-9, $500 for each of the 11 delayed completions, and $350 per violation for the 165 incomplete forms). They also allowed the company to use a payment schedule. The reasoning for lowering the fee and allowing the payment plan was that Niche was a small company and supported the war effort, and that Niche usually kept documentation and used E-Verify. Based upon the above OCAHO stated the company showed good faith.
What the above shows is that, while the form part of the I-9 process seems redundant or superfluous, it is important to complete the forms fully and on time and to keep records of all such forms i n employee files. Failure to do so could result in large fines. If needed, having someone come in to audit your I-9 files to ensure they are complete, without errors and all required documents are attached can be an economical idea in the long run.
Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.