Mitigating factors in an ICE (Immigration and Customs Enforcement) I-9 inspection can reduce penalties or fines for violations found during an audit of an employer’s Form I-9 compliance. These factors are considered by ICE when determining the severity of penalties under the Immigration Reform and Control Act (IRCA).
Below are the key mitigating factors based on the available information:
Business Size: Smaller businesses may receive leniency, as ICE considers the number of employees and resources available. For example, businesses with fewer employees (e.g., under 100) may have fines reduced due to limited administrative capacity.
Good Faith Effort: Demonstrating a good faith effort to comply with I-9 requirements can mitigate penalties. This includes having a consistent process for completing I-9 forms, training staff on compliance, and correcting errors promptly upon discovery.
Lack of Serious Violations: If the violations are technical or procedural (e.g., missing signatures or dates) rather than substantive (e.g., knowingly hiring unauthorized workers), ICE may reduce penalties. Technical violations are often viewed as less severe.
Prompt Correction of Violations: Employers who quickly correct errors or deficiencies in I-9 forms after notification or during an audit may face reduced penalties. Proactive remediation shows cooperation and intent to comply.
Cooperation During the Audit: Being cooperative, transparent, and responsive during the ICE inspection process can positively influence the outcome. Providing requested documents promptly and maintaining organized records helps.
History of Compliance: Employers with no prior I-9 violations or a strong track record of compliance may receive reduced penalties. A clean compliance history demonstrates a commitment to following regulations.
Participation in E-Verify: Enrollment and active use of E-Verify, the federal electronic employment eligibility verification system, can be a mitigating factor, as it shows an employer’s effort to verify worker eligibility.
Internal Audits and Compliance Programs: Conducting regular internal I-9 audits and maintaining a robust compliance program (e.g., written policies, employee training) can demonstrate due diligence, potentially reducing penalties.
Additional Context
Penalty Structure: Fines for I-9 violations range from $281 to $2,789 per violation for paperwork errors and $698 to $27,894 for knowingly hiring unauthorized workers (as of 2025, adjusted for inflation). Mitigating factors can reduce these by a percentage, typically up to 5% per factor, though aggravating factors (e.g., large percentage of unauthorized workers) may increase penalties.
ICE’s Discretion: The Homeland Security Investigations (HSI) unit, which conducts I-9 inspections, has discretion to adjust penalties based on these factors, but the extent of mitigation depends on the specific circumstances.
Recommendations
- Conduct regular internal I-9 audits to identify and correct errors.
- Train HR staff on proper I-9 completion and retention.
- Enroll in E-Verify if applicable to your industry or state.
- Maintain clear documentation of compliance efforts to present during an audit.
Primary Resource: https://www.ice.gov/factsheets/i9-inspection