Form I-9 Penalty Amounts Assessed by ICE Must Be Based on Specific Factors

With regard to Form I-9 violations, any aggravated punitive fines imposed upon employers by the United States Department of Homeland Security, Immigration and Customs Enforcement (otherwise known as ICE) must be based upon several factors set forth by law. This was recently underscored in a recent court case heard by the Executive Office for Immigration Review (EOIR), Office of the Chief Administrative Hearing Officer (OCAHO), in the case of United States v. March construction on November 13, 2012. Here, OCAHO significantly reduced the overall fine from $86,933 to $17,120 because it said ICE failed to establish specific factors.

The March Construction case emphasized the rule that the burden of proof rests on the government to establish the penalty and liability, and it must therefore prove aggravating factors by a preponderance of the evidence. In order to assess a penalty, there are several factors to be considered, which are:

• The size of the business
• The good faith of the employer
• The seriousness of the violation
• Whether the employee was an unauthorized immigrant
• Whether the employer has previous violations
• The company’s ability to pay the fine

Each of these aggravating factors must be based on specific facts supported by evidence in order to justify enhancement of a fine.

The size of the fine to be imposed is proportionate to the size of business. A large sized business would receive a higher fine, whereas a small sized business would receive a lower fine. In determining the size of the business, case law has provided a variety of factors to be considered. These include gross sales, the value of assets, and workforce size.

In order to establish bad faith, the government must prove that the employer engaged in culpable conduct going behind the mere failure to comply. It is not enough to simply show a large quantity of violations or a dismal compliance rate.

The seriousness of the violation is measured on a continuum. For example, failure to correct minor Form I-9 technical or procedural errors would be considered less serious, whereas failure to prepare the I-9 forms or failure to sign the application would be considered more serious.

This may only be considered to be an aggravating factor when it is found that a specific I-9 form violation concerns a specific individual who is found to be unauthorized. It is not enough to simply establish that a company employs unauthorized immigrants. It must be established that the specific I-9 form of the specific unauthorized immigrant contained technical or procedural violations. The mere presence of unauthorized immigrants in the workforce is not a legitimate basis for aggravating penalties.

This one is self-explanatory, as the number of previous violations will serve as an aggravating factor to justify increasing the penalty.

Although this factor is not specifically set forward by this statute, case law has established that the ability of the company to pay the proposed penalty is a legitimate factor to be considered when assessing the size of the penalty could be imposed.