After inspection and ICE determines that technical, procedural, or substantive violations have been committed, the ICE will issue a Notice of Intent to Fine. This is the notice that will inform the employer of the violations found by ICE and the penalty recommended by them for the violations allegedly committed by the employer.
What penalties can ICE impose on employers?
Generally, there are two types of penalties. One is the payment of fines which is also called the civil penalty. It may be imposed for both procedural and substantive violations. If the employer has been informed by ICE that there are procedural and technical violations that they need to correct but the employer has failed to correct them, then the employer may be made to pay civil penalties as well.
The other is called a criminal penalty which may be imposed on top of the civil penalty. The criminal penalty includes an order for the employer to stop committing substantive violations such as recruiting, hiring, or continuing to employ persons not authorized to work in the US.
How are penalties computed?
ICE will abide by the Knowing Hire/ Continuing to Employ Fine Schedule as well as the Substantive/Uncorrected Technical Violation Fine Schedule. These schedules are formulas for determining the amount of fine that an employer may be made to pay.
It is based on determining the number of violations or the number of employees who were hired despite them being unauthorized to work in the US. For example, if there are 10 unauthorized workers, and there are a total of 100 employees in the employer’s business, the employer has 10% of its workers unauthorized. This is referred to as a violation percentage.
After the violation percentage is determined, there are standard amounts of fines that may be imposed depending on whether this is the employer’s first, second, third or subsequent offense. This is where the schedules provide the amount that may be imposed.
However, after determining the standard fine, the amount may be increased or reduced depending on the application of the enhancement matrix. The enhancement matrix comprises five factors that may serve to increase or decrease the fine imposed.
ICE will consider the employer’s business size, good faith, seriousness, unauthorized aliens, and business history. Under the enhancement matrix, a total of 25% may be added or deducted from the standard fine sought to be imposed by ICE.
What violations will be penalized with fines?
The following acts will be penalized with civil and/or criminal fines:
- Knowingly hiring a person unauthorized to work in the US
- Continuing to employ a person unauthorized to work in the US
- Failing to produce a Form I-9 for every employee (no Form I-9s filled out or Form I-9s were not kept as part of business records for the required number of years)
- Failing to comply with Form I-9 verification requirements (incompletely or incorrectly filled out Form I-9)
- Committing or participating in the commission of document fraud
- Committing document abuse
- Failing to notify the DHS that an employee has received a Final Non-Confirmation of Employment Eligibility
However, when employers abuse the Form I-9 verification requirements, they may also be imposed fines. They may be imposed fines for the following abuse of the Form I-9 verification process:
- Discriminating against persons authorized to work in the US in the hiring, firing and recruiting of employees
- Requiring employees to post a bond or security or to pay money or promise to guaranty or indemnify the employer from any liability arising from the employment verification requirements
- Using E-Verify as a screening tool for applicants for a position
