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ICE Releases Internal Guidance on Administrative Fines in Civil Worksite Enforcement

Immigration and Customs Enforcement (ICE), the Federal agency which verifies I-9 compliance, has released large portions of its internal memo “Revised Administrative Fine Policy Procedures” pursuant to action by the American Immigration Lawyers Association. The memo itemizes types of violations and the penalties applying to each; and gives guidance on when paperwork errors cross the line between “technical” and “substantive.”    

As most businesses know, they are responsible for documenting work authorization for all foreign nationals in their employ by means of Form I-9.  The form must be completed within three business days of the hire, re-verified as necessary thereafter, and retained either three years from the date of hire or one year after the employee is terminated, whichever is longer.  The company’s I-9 forms must be available for inspection by ICE field investigators upon request.

The recently-released memo lists four violations subject to penalty.  “Knowing hire” is the illegal hiring, or fee-based recruitment or referral, of an alien the principal knows is not authorized to work in the U.S.  “Continuing to employ,” as the name implies, is illegal continued employment of a worker who is or who has become unauthorized.  “Indemnification” is the illegal practice of requiring employees to post bond, to be used in case the employer is fined by ICE.  Finally, “verification” violations are defined as paperwork or procedural errors that occur in the Form I-9 process.  They are subdivided into “technical” and “substantive” violations, the difference turning on whether the error could have led to the hiring of an alien not authorized to work.      

Penalties for “knowing hire” and “continuing to employ” violations are based on the number of the violations and the date of occurrence.  Thus, the fine for a single violation found to have occurred before September 29, 1999 ranges from $250 - $2000; for two violations before that date, from $2,000 - $5,000; and for more than two , from $3,000 to $10,000.  Violations found to have occurred between September 29, 1999 and March 26, 2008 carry higher fines in escalating amounts depending on whether there were one, two or more.   These range from $275 minimum to $11,000 maximum.   Fines are highest for violations that occurred on or after March 27, 2008.  They also escalate with numbers of violations found, and range from $375 to $16,000.  Finally, employers holding contracts with a federal agency who are found to have “knowing hire” or “continuing to employ” violations may be subject to debarment by the agency 

Indemnification violations that occurred before September 29, 1999 carry a fine of $1,000 per employee required to post bond; if occurring later, a fine of $1,100 per individual and an order to make restitution. 

Substantive and technical verification violations are each subject to the same fine amounts:  not less than $110 and not more than $1,100 for each individual whose I-9 form is in violation; or, for violations occurring before September 29, 1999, not less than $100 and not more than $1,000.    However, some employers found to be in technical violation are provided at least ten business days to correct the error(s) and will then be considered in compliance.  Provisions exist for employers who cannot reasonably make the correction(s) due to outside circumstance.  Employers found to be in technical violation and nonetheless subject to fine include those showing a widespread pattern of error and those previously notified by ICE of the same violation.  Substantive violations are always subject to fine and comprise, for example, failure to ensure the individual prints his or her name in Section 1, or lack of the individual’s A number anywhere on the form.

Some sensitive information has been edited out of the memo ICE has released, it nonetheless contains a substantial amount of detailed, specific information which employers may access through our website. Immigration Law Associates, P.C. provides comprehensive internal I-9 audits for employers, as well as training and guidance as challenging issues arise. Please contact our office at 847-763-8500 or e-mail at

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