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The Increase in Form I-9 Penalties and What It Means for Employers

With no fanfare and minimal notice, the government has significantly increased the penalties that can be assessed for a variety of offenses related to the Employment Eligibility Verification Form I-9.

Now, a “mere” error on the paperwork, such as failure to check a box or confirm that the employee dated the document, can result in a penalty of between $216 and $2,156. Previously, the penalty ranged from $110 to $1,100. This almost doubling of the penalty range is significant because penalties for paperwork errors can be the largest aspect of government fines, even for the best of employers.

Many employers find that their Forms I-9 are replete with paperwork errors. Fortunately, only one financial penalty for paperwork violations can be assessed per Form I-9. They are not assessed for each mistake on a Form I-9. But that does not mean that paperwork fines aren’t potentially disastrous for employers. The determination as to the amount to assess within the range allowed is made by the agent or auditor, who will divide the number of violations by the number of employees for which a Form I-9 should have been prepared to obtain a violation percentage and determination of amount to fine.

The penalties for knowingly hiring or continuing to employ unauthorized individuals have gone up, too. The “old” penalties for a first violation ranged from $375 to as much as $3,200 for each worker for a first-time offense. Under the new, current protocol, the penalty range is from $539 to as much as $4,313 for a first offense. (Fines are consistent within each government action, so a “first-time offense” rate applies to all fines of that kind assessed in that particular investigation.) The fines can increase each time an employer is cited in a new action, even if no penalty is assessed. An employer that gets audited and cited a third time can be ordered to pay as “little” as $6,469 and as much as $21,563 per unauthorized worker.

These new rates apply retroactively to violations determined to have occurred after November 2, 2015. You can find out more about all penalties and more at the government’s I-9 Central.

Please feel free to contact me at grodgers@gsblaw.com or at 206.816.1404 if your business has questions regarding the Form I-9, government “audits” and/or how to properly conduct your own internal audit.

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The International Practice Group of Garvey Schubert Barer is a cross-disciplinary group of attorneys practicing in areas ranging from business transactions, immigration, maritime, government regulatory work, transportation and logistics, and estate planning. The group members include bilingual and multicultural attorneys who are well-versed in handling these subject matters in a cross-border context. The firm’s attorneys have been actively practicing in the international arena since the early 1970s. 
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