What do McDonald's, Macy’s, Abercrombie & Fitch, and Infosys have in common? They all thought their I-9 forms were in perfect order. That is, until the government came knocking on their door. Today, more than ever, U.S. employers must be vigilant in complying with all aspects of immigration-related laws and regulations. The Obama administration has dramatically increased the number of I-9 audits to historically high levels, and promises that I-9 enforcement efforts will remain a high priority. For example, on one day, June 15, 2011, Immigration and Customs Enforcement (ICE) issued 1,000 Notices of Inspection of I-9 forms and subpoenas to various U.S. companies large and small. I-9 investigations are at an all-time high, with more than 3,000 audits taking place in 2012 compared to only 250 in 2007. According to the Association for Corporate Counsel, between fiscal years 2009 to 2012, the total amount of fines grew to nearly $13 million from $1 million and the number of company managers arrested increased to 238.

Since President Obama took office, his administration has audited more than 7,000 businesses suspected of hiring undocumented workers. The days of thinking that immigration enforcement is only targeting industries that employ a diverse workforce, such as health care, hospitality, shipping, restaurant, garment and the construction business, are long gone. Every employer must be aware of immigration laws  as they relate to the processing and management of their I-9 forms and other compliance programs. The employer sanctions provisions, found in section 274A of the Immigration and Nationality Act, were added by the Immigration Reform and Control Act of 1986. These provisions legally mandate that U.S. employers, regardless of whether they employ any foreign nationals, must verify the employment eligibility status of newly-hired employees and make it unlawful for employers to knowingly hire or continue to employ unauthorized workers. I-9 obligations are imposed on all employers regardless of size. Significant I-9 penalties have been levied against companies that did not even have foreign nationals on their payrolls. They simply failed to comply with the legally required verification of employment eligibility of each new hire, or they discriminated against certain new hires during the I-9 completion process. 

Employers who violate the law may be subject to:

-       Civil fines,

-       Criminal Penalties,

-       Debarment from Government Contracts,

-       A court order requiring the payment of back pay to the individual discriminated against,

-       A court order requiring the employer to hire the individual discriminated against,

-       Loss of business license,

-       Attorneys’ Fees,

-       Other crimes, such as tax fraud, Social Security fraud, money laundering, identity theft, bank fraud, among others.

                                                                                    Potential Penalties for Non-Compliance


The Price of I-9 Noncompliance

"An ounce of prevention is worth a pound of cure"

Immigration Practice


An Employer must:

-    Verify the identity and employment authorization of each person hired after Nov. 6, 1986.

-    Complete and retain a Form I-9 for each employee required to complete the form.

An Employer must not:

-     Discriminate against individuals on the basis of national origin, citizenship, or immigration status.

-     Hire, recruit for a fee, or refer for a fee aliens he or she knows to be unauthorized to work in the United States.

The development of an immigration-compliance program may be able to minimize the impact of a site visit, an investigation by the Department of Labor, or an I-9 audit. While your company can’t do anything to avoid being audited, there are many things you can do to make sure you are ready. One of the most cost-effective and convenient ways to put an end to the worry and chaos is to schedule a partial I-9 audit of 10% of your workforce to see what’s buried in your paperwork – and then train your staff on the most prevalent errors and document issues. This can easily be accomplished both onsite and offsite.

E. Adriana Kostencki, Esq.

Berger Singerman



Noncompliance, whether intentional or caused simply by oversight, has severe legal and financial consequences imposed by the Department of Homeland Security, as well as the potential of a corporate image tarnished by negative publicity. Some of the recent immigration-related penalties provide compelling reasons to invest in immigration training and compliance. The following chart of recent immigration-related penalties should convince companies to implement and maintain a solid I-9 completion and maintenance program.