In November, U.S. Immigration and Customs Enforcement (ICE) announced 1,000 new I-9 audits had been initiated and penalties for employer violations had increased. The new audits were in addition to 654 that were announced in July and represents a three-fold increase over the 503 audits conducted in all of FY2008 (October 1, 2007 to September 30, 2008). ICE Assistant Secretary John Morton also announced the results of the 654 audits conducted over the summer, indicating that they had resulted in 61 Notices of Intent to Fine, encompassing $2.3 million in fines, 267 business still under investigation and 326 closed cases after employers were found to be in compliance.

Since the new ICE worksite priorities were announced in April 2009, the agency has dramatically stepped up enforcement against employers, with an emphasis on critical infrastructure sites. Since April 30, 2009, ICE has debarred 45 businesses from federal contracting and other federal programs on account of I-9 and other violations, levied more than $15.8 million in fines, and has initiated 1,897 enforcement cases against employers.

Monetary penalties for knowingly hiring an unauthorized worker and for continuing to employ an unauthorized worker now range from $375 to $16,000 per violation. Penalties for substantive violations, including failing to produce I-9 forms when requested, range from $110 to $1,100 per occurrence. To determine penalty amounts, ICE considers five factors: (1) the size of the business; (2) good faith efforts at compliance; (3) seriousness of the violations; (4) whether the violation involved unauthorized workers; and (5) previous history of violations.

To protect themselves, employers should consider conducting routine self-audits of their I-9 forms, reviewing and updating their I-9 policies, and conducting regular training of staff involved in the I-9 process. If employers receive I-9 audit notices, they should consider immediately seeking legal counsel to assist them in responding to the notice.