In a decision issued on August 29, 2023, Administrative Law Judge (ALJ) Andrea Carroll-Tipton ordered the Respondent, an oilfield services company operating in New Mexico, to pay $83,500 in penalties and cease and desist from hiring individuals lacking work authorization. ICE had originally sought $107,140.00 in fines and penalties.

The decision brings an end to an investigation that began in August of 2019 with the service of a Notice of Inspection (NOI) directing the Respondent to produce all Forms I-9 and various other documentary materials within three business days. In August of 2021, the Respondent requested a hearing on the charges contained in the NOI.

In June of 2022, the ALJ issued a decision on liability, finding Respondent liable for failing to timely prepare or present fifty-five Forms I-9. The ALJ then set the decision over for argument on the penalties that should issue. In August of 2023, the ALJ issued a decision fining the Respondent.

This case carries important lessons for employers:

• First, regardless of business size, Form I-9 completion is a requirement that the government takes seriously and will seek fines and penalties for violations. This underscores the importance of implementing a Form I-9 completion policy within your larger HR unit.

• Second, fines and penalties can add up fast. The ALJ issued a fine of $1,500 for each Form I-9 violations, and $2,000 for each charge involving unauthorized employment. These types of penalties, along with the litigation cost, can sink businesses.

• Lastly, the case underscores the importance of competent representation in these matters. While the Respondent here had to deal with the death of one attorney and the retirement of another, neither were experienced in the intricacies of litigating these types of cases.

Compliance with Form I-9 requirements is the expectation, not the exception. As this case demonstrates, fines and penalties for failure to correctly complete and maintain Forms I-9 can be costly and ICE audits can come suddenly and without warning. Employers should take all necessary steps to remain on top Form I-9 and E-Verify requirements which will help ensure success in the event of an audit.

Posted: September 25, 2023