The lack of an I-9 policy could subject your clients to large
fines, even if the errors are technical and inadvertent. In fact,
technical errors often make up the bulk of fines levied by the
Department of Labor (DOL) or Immigration and Customs Enforcement
(ICE). When dealing with federal regulations, a policy of
prevention could save your clients the pain of an expensive fine.
Attorneys who represent employers and businesses should consult
with an immigration practitioner to ensure proper I-9
On April 3, 2009, a new I-9 form, version 2/2/09, became
effective. The next most recent version was published on Aug. 7,
2009. These two versions are now the only valid versions of the
form. The new form specifically restricts use of any documents that
are expired. The previous iteration of the form changed the list of
acceptable documents in List A, removing some previously acceptable
documents and adding changes to the acceptability of the I-94 card.
In addition, the previous form changed the requirement of a Social
Security number, and an employer must make sure not to run afoul of
this significant change.
Mandated use of E-Verify by federal contractors
By presidential executive order, on June 9, 2008, if a company
has any contracts with the federal government, it must participate
in an electronic system in order to verify that an employee is
eligible to work in the U.S. The secretary of the Department
Homeland Security has selected E-Verify as the preferred system.
DHS administers the E-Verify system, which is an online system
through which member employers can verify the work authorization
status of new employees.
Implementing a formal, written I-9 policy
With the current climate of DOL and ICE investigations, no
employer should be without a written I-9 policy.
- Key issues that an employer (your client) should consider
- Are you complying with the proper retention rules?
- Do you know when you must and when you cannot re-verify an
- Do you know whether or not you should make copies of the
employee's identity documents?
- Is your policy effective while avoiding prohibited
- What is constructive knowledge, and do you have it?
- Do you perform a yearly internal audit?
- Should you participate in the E-Verify system?
- Will you have a good faith affirmative defense?
If an employer fails to fulfill its I-9 obligations, the
penalties can be harsh. If the federal government finds that an
employer is liable for unlawful hiring, for the first offense,
penalties range from $375 to $3,200 per unauthorized employee. For
a third offense, or more, the penalties can increase to a whopping
$16,000 per unauthorized employee.
Besides unlawful hiring, ICE can assess penalties against an
employer for violating verification and recordkeeping requirements.
Paperwork penalties are assessed when employers have incorrect or
missing I-9 forms for their employees, and range from $110 to
$1,100 per I-9.
Although criminal penalties do not apply to violations that are
purely paperwork in nature, an employer should also keep in mind
that it can be charged with criminal penalties for "pattern or
Employing workers who are unauthorized for employment may also
subject the employer to criminal penalties.
Constructive knowledge prior to Sept. 14, 2007, includes but is
not limited to: (1) failing to complete or improperly completing
I-9; (2) having information that indicates that alien is not
authorized to work, for example, alien has asked the employer to
sponsor her for a labor certification; (3) acting with reckless and
wanton disregard, for example, allowing contractor to place
unauthorized aliens in its work force.
Constructive knowledge after Sept. 14, 2007 - DHS had promulgated
new "no-match" rules that would have required employers to take
certain steps in order to obtain "safe harbor," but on Oct. 7,
2009, DHS withdrew its no-match rules, leaving in place a standard
of a totality of circumstances.
Receipt of a no-match letter from SSA does not, by itself, create
constructive knowledge, but the letter and the employer's actions
after receipt of such letter will be two factors that DHS will use
when ascertaining whether an employer has constructive knowledge
that an employee did not have proper authorization to work.
If knowledge or constructive knowledge is found:
- When the federal authority investigating the employer
determines that the employer has engaged in a pattern and practice
of employing unauthorized workers, the federal agent can fine the
employer $3,000 for each unauthorized worker, and put the employer
in prison for six months, or both.
- More serious charges are felonies, harboring and money
laundering, and the government has increasingly been filing these
kinds of charges against employers.
- Harboring: maximum penalty is five years for each
alien, or in some cases, 10 years if private financial gain or
commercial advantage (e.g. unfair competition) is found to be an
element of the crime.
- Money_laundering: 10 to 20 years for each offense,
depending on the statute under which a person is convicted.
Attorneys should ensure that their client companies implement
proactive measures and compliance policies in order to avoid these
Marisa DeFranco has more than 14 years of experience
specializing in immigration and nationality law. She was a
recipient of a national award for her pro bono work, the National
Legal Aid & Defenders Association's Beacon of Justice award, in
October 2010. In her practice in Salem, DeFranco serves all the
immigration needs of both her business and family based clients,
including business visas, green cards and I-9 audits for corporate
clients, marriage and relative petitions for families, and Mandamus
actions in federal court and deportation proceedings for
individuals. She is the chair of the MBA Immigration Law Section
Council and previously served as the New England Chapter chair of
the American Immigration Lawyers Association (AILA) and on the
National Liaison Committee for the Vermont Service Center. In 2008,
DeFranco was appointed a commissioner on the Massachusetts
Commission on the Status of Women.