Yesterday, DHS released an overview of the I-9 inspection process, which includes recommended penalties for noncompliance as well as guidance on how investigators should enhance or mitigate the assessed fine. The recommended penalties are presented in two schedules – one for employers who have knowingly hired or continue to employ unauthorized workers, and another for substantive and uncorrected technical violations on the I-9 form. In both schedules, the range of penalties is determined by dividing the number of violations by the number of employees (violation percentage) and then considering whether it is a first offense, second offense, or a third or more offense.
The substantive/uncorrected technical violation schedule is as follows:
| Standard Fine Amount for each offense | |||
| Substantive Verification Violations | 1st Offense $110 – $1,100 |
2nd Offense $110 – $1,100 |
3rd Offense + $110 – $1,100 |
| 0% – 9% | $110 | $550 | $1,100 |
| 10% – 19% | $275 | $650 | $1,100 |
| 20% – 29% | $440 | $750 | $1,100 |
| 30% – 39% | $605 | $850 | $1,100 |
| 40% – 49% | $770 | $950 | $1,100 |
| 50% or more | $935 | $1,100 | $1,100 |
After the “base” fine is determined, investigators can also “enhance” or “mitigate” the recommended fine by 5% for each of five separate factors, which include business size, good faith, seriousness, unauthorized workers, and history. The end results means that fines could be as great as 25% above or below the base recommended penalty.
| Factor | Aggravating | Mitigating | Neutral |
| Business Size | +5% | – 5% | +/- 0% |
| Good Faith | +5% | – 5% | +/- 0% |
| Seriousness | +5% | – 5% | +/- 0% |
| Unauthorized Workers | +5% | – 5% | +/- 0% |
| History | +5% | – 5% | +/- 0% |
| Cumulative Adjustment | +25% | – 25% | +/- 0% |
In addition, DHS has also provided a general roadmap for the I-9 inspection process, including the most common notices that employers will receive.