Form I-9 Fines, Notice of Intent to Fine Defense, and OCAHO Proceedings

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Last Updated: July 2026

A Notice of Intent to Fine, commonly called a NIF, is the formal notice through which U.S. Immigration and Customs Enforcement alleges that an employer violated federal employment-verification laws and identifies the civil penalties ICE proposes to impose.

A NIF does not necessarily represent the amount the employer will ultimately be required to pay. The employer may contest the alleged violations, challenge ICE’s calculations, present mitigating evidence, negotiate a settlement, or request a hearing before the Office of the Chief Administrative Hearing Officer (OCAHO).

The most urgent issue is the deadline: an employer generally has only 30 calendar days after receiving a NIF to request an OCAHO hearing. If the employer does not submit a timely request, ICE may issue a Final Order that cannot be appealed within the agency, although there may be rights to challenge in federal court.

Requesting a hearing preserves the employer’s right to contest the charges. It does not prevent the employer from continuing to negotiate a settlement with ICE.

Form I-9 Fines at a Glance

A NIF states ICE’s alleged violations and proposed penalties.
The employer generally has 30 calendar days from receipt to request an OCAHO hearing.
The proposed fine should be independently reviewed rather than assumed to be correct.
Employers may challenge whether particular errors constitute violations, the number of violations charged, the applicable penalty range, and ICE’s consideration of mitigating factors.
A hearing request ordinarily preserves the employer’s rights while settlement discussions continue.
If the matter is not resolved, the Department of Homeland Security may file a complaint with OCAHO.

What Is a Notice of Intent to Fine?

ICE may issue a Notice of Intent to Fine following a Form I-9 inspection when it believes the employer committed one or more violations of the Immigration and Nationality Act.

According to ICE’s current Form I-9 inspection guidance, a NIF may allege:

Failure to prepare, retain, or present required Forms I-9
Substantive Form I-9 violations
Technical or procedural failures that were not timely corrected after notice
Knowingly hiring or recruiting unauthorized workers
Continuing to employ workers after acquiring actual or constructive knowledge that they are not authorized to work

The NIF generally identifies the alleged violations, organizes them into numbered counts, and states the civil monetary penalty ICE seeks to impose.

Employers should not assume that every violation listed in the NIF was properly classified or that ICE’s proposed penalty was correctly calculated. The Forms I-9, supporting records, ICE correspondence, employee data, alleged violation percentage, penalty matrix, and statutory factors should be reviewed independently.

What Should an Employer Do After Receiving a NIF?

An employer receiving a Notice of Intent to Fine should take immediate steps to protect its ability to respond.

Determine and Document the Receipt Date

Preserve the envelope, delivery information, email, certificate of service, and any other evidence establishing when the NIF was received.

Calendar the 30-Day Deadline

The hearing deadline should be calculated conservatively, with sufficient time allowed to prepare and submit the request according to the instructions in the NIF.

Preserve Relevant Records

Relevant records may include:

Forms I-9
Copies of documents presented by employees
Payroll records
Hiring and termination records
Employee lists
Internal-audit materials
Electronic-system records and audit trails
Communications with ICE
Communications with affected employees
Form I-9 policies and training records

Do Not Backdate or Conceal Corrections

Any lawful post-audit corrections should be transparent, properly dated, and supported by an audit trail. Employers should never backdate, conceal, destroy, or improperly alter records.

Reconcile ICE’s Allegations With the Employer’s Records

Each count should be compared against the corresponding employee, Form I-9, supporting documentation, and applicable legal requirements.

Review the Penalty Calculation

Employers should examine:

The number of alleged violations
The number of Forms I-9 that should have been presented
The violation percentage
The applicable penalty range
The alleged offense level
ICE’s treatment of the five statutory factors

Collect Mitigating Evidence

Relevant evidence may include the employer’s size, financial condition, compliance history, good-faith efforts, internal audits, HR training, corrective measures, employee turnover, and the absence of unauthorized workers.

Identify Potential Criminal or Collateral Issues

Allegations involving knowingly employing unauthorized workers, false statements, fraudulent documents, harboring, obstruction, or a pattern or practice of unlawful employment may require coordination with criminal-defense counsel.

An employer should avoid making unnecessary admissions before the allegations and potential defenses have been evaluated.

The 30-Day Deadline to Request an OCAHO Hearing

An employer must generally request a hearing within 30 calendar days after receiving the Notice of Intent to Fine.

This deadline should not be allowed to expire merely because the employer is communicating or negotiating with ICE. Unless ICE provides legally effective written confirmation otherwise, settlement discussions should not be assumed to extend the hearing-request deadline.

If a timely hearing request is not submitted, ICE may issue a Final Order. ICE states that there is no appeal from that Final Order, although there may be a basis to appeal in federal court.

A timely hearing request does not require an employer to abandon settlement negotiations. Employers may continue attempting to resolve the case before ICE files an OCAHO complaint and, in many cases, after OCAHO proceedings begin.

What Is OCAHO?

The Office of the Chief Administrative Hearing Officer is part of the Department of Justice’s Executive Office for Immigration Review.

OCAHO Administrative Law Judges adjudicate cases involving:

Form I-9 and employment-verification violations
Knowingly hiring, recruiting, referring, or continuing to employ unauthorized workers
Immigration-related unfair employment practices
Immigration-related document fraud

When an employer timely requests a hearing and the matter is not settled, the Department of Homeland Security may file a formal complaint with OCAHO. The employer then has an opportunity to answer the complaint, conduct discovery, present evidence, file motions, participate in settlement proceedings, and contest both liability and the proposed penalty.

OCAHO is not simply another level of review within ICE. It is an administrative adjudicatory forum in which an Administrative Law Judge may independently evaluate the alleged violations and appropriate penalty.

Current Civil Penalty Ranges for Form I-9 Violations

Civil penalties are adjusted periodically for inflation. As of July 2026, penalties assessed under the currently applicable ranges include:

Alleged violation	Current civil penalty range
Form I-9 paperwork violations	$288 to $2,861 per charged violation
Knowingly hiring or continuing to employ an unauthorized worker—first offense	$716 to $5,724 per worker
Knowingly hiring or continuing to employ an unauthorized worker—second offense	$5,724 to $14,308 per worker
Knowingly hiring or continuing to employ an unauthorized worker—third or subsequent offense	$8,586 to $28,619 per worker

The applicable range may depend on when the violation occurred and when the penalty was assessed. Employers should confirm the governing inflation-adjusted amounts under 8 C.F.R. § 274a.10 rather than relying on an older penalty chart.

The financial exposure can become substantial even when ICE does not allege that the employer knowingly hired an unauthorized worker. A company with numerous Forms I-9 containing substantive or uncorrected technical violations may face penalties calculated across many employees.

How Does ICE Calculate Form I-9 Fines?

ICE does not ordinarily calculate a proposed Form I-9 fine by simply multiplying every violation by the statutory minimum or maximum.

Under ICE’s current guidance, the agency generally:

Determines how many Forms I-9 should have been presented for inspection.
Identifies substantive violations, uncorrected technical or procedural failures, and alleged knowingly-hire or continuing-to-employ violations.
Divides the number of chargeable violations by the number of Forms I-9 that should have been presented.
Uses the resulting violation percentage and the employer’s offense level to determine a base penalty.
Considers five statutory factors that may aggravate, mitigate, or have no effect on the proposed penalty.

The date ICE serves the NIF is generally treated as the penalty-assessment date for determining which inflation-adjusted ranges apply.

ICE’s Form I-9 Violation Percentage

The employer’s violation percentage can substantially affect the proposed fine.

ICE states that it calculates this percentage by dividing the number of substantive violations, uncorrected technical or procedural failures, and knowingly-hire or continuing-to-employ violations by the number of Forms I-9 that should have been presented.

A higher violation percentage can cause ICE to select a higher base penalty within the applicable range. The calculation may also differ depending on whether ICE considers the case a first, second, or third or subsequent offense.

Simplified Example

Assume an employer was required to present 200 Forms I-9, and ICE alleges that 40 contain chargeable violations.

ICE may begin with a violation percentage of 20%. That percentage can affect the base penalty assigned to each charged violation before ICE considers the five statutory factors.

In an actual case, the employer should determine:

Whether all 200 Forms I-9 were legally required
Whether ICE accurately counted the forms and employees
Whether each alleged error is legally chargeable
Whether a purportedly substantive violation should be treated as technical or procedural
Whether technical failures were properly identified and timely corrected
Whether ICE included employees outside the applicable retention period
Whether ICE correctly determined the employer’s offense level
Whether the proper inflation-adjusted range was applied

A mistake in the denominator, violation count, classification, or offense level can significantly affect the proposed penalty.

The Five Statutory Form I-9 Penalty Factors

After determining the base fine, ICE considers five factors identified in INA § 274A(e)(5), codified at 8 U.S.C. § 1324a(e)(5):

The size of the employer’s business
The employer’s good faith
The seriousness of the violations
Whether the violations involved unauthorized workers
The employer’s history of previous violations

Under ICE’s penalty matrix, each factor may generally increase the base fine by 5%, decrease it by 5%, or be treated as neutral. Collectively, these factors may potentially adjust ICE’s calculation by as much as 25% in either direction, subject to the applicable statutory minimum and maximum.

The employer should not rely on ICE to identify all available mitigating evidence. A response should explain the requested treatment of each factor and include supporting documents.

Size of the Business

The employer’s size may support mitigation, particularly when the proposed penalty would impose a disproportionate burden on a small company.

Relevant evidence may include:

Number of employees
Annual revenue and profitability
Payroll obligations
Number and location of worksites
Ownership structure
Financial statements or tax records
Anticipated effect of the penalty on continued operations

Small-business status does not excuse Form I-9 violations, but it may support a reduction. The employer’s overall financial condition may also be relevant to settlement negotiations or OCAHO’s evaluation of an appropriate penalty.

Employer Good Faith

Good faith involves more than stating that the violations were accidental. Employers should present evidence showing their efforts to understand and comply with Form I-9 requirements.

Potential evidence includes:

Written Form I-9 policies and procedures
Prior internal Form I-9 audits
Regular Form I-9 training for HR and hiring managers
Use of qualified personnel to manage the process
Timely responses to ICE’s requests
Transparent corrections with complete audit trails
Investment in compliant electronic Form I-9 systems
Centralized oversight of decentralized hiring locations
Corrective measures implemented after discovering a problem
Disciplinary or retraining measures when personnel failed to follow company policy

Good faith does not automatically eliminate liability for substantive violations. Nevertheless, documented compliance efforts can be important when ICE or OCAHO determines the appropriate penalty.

Good-faith arguments are stronger when supported by records created before the inspection. Policies prepared only after ICE serves a Notice of Inspection may still show corrective action, but they do not carry the same evidentiary value as a functioning compliance program that was already in place.

Seriousness of the Violations

Not all Form I-9 violations have the same effect on the employment-verification process.

ICE may treat certain violations as particularly serious, including:

Failing to prepare a Form I-9
Failing to present a required form during the inspection
Failing to ensure the employee signed the required attestation
Failing to review employment-authorization documents
Failing to complete the employer certification
Completing the verification process substantially late
Failing to reverify temporary employment authorization
Accepting documents that do not reasonably relate to the employee
Backdating or falsifying a Form I-9

An employer may argue that other violations are less serious because the missing information was available elsewhere on the form, the employee was authorized to work, acceptable documents were timely examined, or the error did not defeat the purpose of the verification process.

The specific facts surrounding each form matter. A blanket assertion that all paperwork violations are equally serious should be carefully examined.

Involvement of Unauthorized Workers

ICE considers whether the violations involved employees who were not authorized to work in the United States.

The presence of unauthorized workers may aggravate the proposed penalty, particularly when ICE alleges that the employer knew or should have known about the lack of work authorization.

Conversely, evidence that the affected employees were authorized to work may support mitigation or an argument that the paperwork failures caused limited practical harm.

Employers should distinguish between:

An authorized employee whose Form I-9 contained an error
An employee whose documentation could not initially be verified
An employee identified in a Notice of Suspect Documents
An employee who could not establish continued work authorization
An employee whom ICE alleges was knowingly hired or knowingly continued in employment without authorization

These situations can create substantially different liability and penalty issues.

History of Previous Violations

ICE may aggravate a penalty if the employer previously received:

A Warning Notice
A Notice of Intent to Fine
A Final Order
An OCAHO decision finding violations
Other formal findings of employer-sanctions violations

An employer with no prior violations should affirmatively document that history and request mitigating treatment.

A prior audit does not necessarily establish a prior violation. The employer should determine how the earlier inspection was resolved and whether ICE is accurately characterizing the prior matter.

Why Correcting Forms I-9 Before an ICE Audit Matters

ICE’s current enforcement guidance treats a broader range of Form I-9 errors as substantive violations capable of generating immediate penalties. Other errors may remain technical or procedural but become chargeable if they are not properly corrected within the period ICE provides.

This makes a proactive internal audit more important. When lawful corrections are made before an ICE inspection:

The employer has more time to investigate each issue.
Employees may be available to correct Section 1 errors.
HR can make transparent corrections without the pressure of a government deadline.
Missing Forms I-9 may be completed, although late completion may remain a violation.
Reverification problems may be identified before work authorization expires.
Systemic problems can be addressed through policy changes and training.
The employer can develop evidence of good-faith compliance efforts.

Corrections made after an inspection begins generally do not erase substantive violations that already occurred. Employers should never backdate a form or attempt to conceal when a correction was made.

Evidence That May Support Form I-9 Fine Reduction

Depending on the allegations, employers should consider assembling:

A form-by-form response to ICE’s allegations
Corrected Forms I-9 and corresponding audit trails
Copies of employment-authorization documents, if maintained consistently
Payroll and termination records
Evidence that particular individuals were not employees subject to Form I-9 requirements
Evidence that ICE included forms outside the retention period
Proof that affected employees were authorized to work
Prior compliance letters or favorable audit results
Form I-9 policies, training materials, and attendance records
Internal-audit reports and corrective-action records
Evidence regarding the company’s size and financial condition
Organizational charts showing responsibility for Form I-9 compliance
Documentation of changes made to prevent similar errors
Evidence disputing any allegation that the employer acted knowingly

Mitigation is most persuasive when it is specific. Instead of merely claiming that the employer acted in good faith, the response should identify the relevant conduct, documents, dates, personnel, and corrective measures.

How Can an Employer Challenge a Notice of Intent to Fine?

An effective response should address both liability and the proposed penalty. Even if some violations are valid, ICE may have charged other forms incorrectly, applied the wrong penalty range, overstated aggravating factors, or failed to consider mitigating evidence.

Potential issues include:

Whether each individual was an employee for whom a Form I-9 was required
Whether former employees remained within the retention period
Whether ICE counted the same employee or form more than once
Whether the employer timely presented a form ICE classified as missing
Whether the alleged error is substantive or technical and procedural
Whether a technical failure was timely corrected
Whether the form contained information elsewhere that affects the allegation
Whether the employee was authorized to work
Whether ICE can prove actual or constructive knowledge of unauthorized employment
Whether ICE applied the correct offense level and penalty range
Whether the government can prove the aggravating factors it relied upon
Whether a limitations defense applies to particular allegations
Whether the employer qualifies for mitigation based on its size, compliance history, good faith, financial condition, or other circumstances

The response should ordinarily include a form-by-form analysis rather than a generalized denial.

Is Every Error on One Form I-9 a Separate Fine?

Not necessarily.

A Form I-9 may contain several deficiencies, but OCAHO precedent generally treats multiple paperwork deficiencies on the same form as one violation for penalty purposes.

For example, a single form might contain a missing employee attestation, incomplete document information, and a missing employer certification. Those deficiencies may make the form seriously defective, but ICE should not necessarily assess three separate paperwork penalties for that one form.

In United States v. R&SL Inc., d/b/a Total Employment and Management, OCAHO reiterated that an employer is generally liable for only one paperwork violation per Form I-9 despite multiple deficiencies on that form.

Separate liability may arise from different statutory violations, such as a paperwork violation and a knowingly-hire or continuing-to-employ violation involving the same employee.

Challenging Allegations That a Form I-9 Was Required

The appearance of an individual’s name in payroll, tax, or personnel records does not always resolve whether the employer was legally required to prepare and retain a Form I-9 for that person.

Potential issues include:

Whether the person was an employee or a legitimate independent contractor
Whether the person ever began performing labor or services for wages or other remuneration
Whether the person was hired before November 7, 1986, and remained continuously employed
Whether the person was a casual domestic worker in a private home
Whether the individual was an owner or principal who was not an employee under the specific facts
Whether a related company, staffing company, or other entity was the actual employer
Whether the Form I-9 retention period had expired before the inspection

In United States v. Intelli Transport Services, Inc., OCAHO found that the government failed to establish that a company owner was an employee for whom the company was required to present a Form I-9. The court dismissed the alleged violation involving that individual.

These questions are fact-specific. A job title, ownership interest, Form W-2, Form 1099, or payroll entry may be relevant, but no single label necessarily resolves the issue.

Challenging Knowing-Hire and Continuing-to-Employ Allegations

Allegations that an employer knowingly hired or continued to employ an unauthorized worker are more serious than ordinary paperwork violations.

ICE may attempt to establish knowledge through evidence such as:

A Notice of Suspect Documents
A final E-Verify nonconfirmation
Expired employment authorization that required reverification
Statements by the employee, supervisors, or HR personnel
Facial inconsistencies in documents
Social Security or identity discrepancies
Prior communications regarding the employee’s authorization
Evidence that management ignored or concealed information
A pattern of hiring individuals using fraudulent documents

The employer should determine exactly what information was available, who received it, when it was received, and what action was taken.

Constructive knowledge should not be assumed merely because an employee’s Form I-9 contained a paperwork error. The government must establish the elements of the alleged knowing-employment violation.

In R&SL, ICE alleged knowing employment involving an employee who received an E-Verify tentative nonconfirmation. OCAHO ultimately dismissed the count because the government did not establish that the employer knowingly hired or continued to employ an unauthorized worker.

Negotiating a Form I-9 Settlement With ICE

A timely hearing request ordinarily preserves the employer’s rights while the parties continue settlement negotiations.

Settlement discussions may address:

Dismissal of unsupported violations
Reclassification or withdrawal of particular charges
Reduction of the proposed penalty
Treatment of the five statutory factors
The company’s ability to pay
A payment schedule
Corrective measures implemented by the employer
Form I-9 training and policy improvements
Future compliance obligations
Resolution of related knowingly-hire allegations

A strong settlement submission should explain why specific violations or penalty enhancements are unsupported. It should also include evidence showing why the proposed penalty is excessive in light of the employer’s size, conduct, history, financial circumstances, and remedial measures.

Simply asking ICE for its “best offer” generally provides less leverage than presenting a documented legal and factual analysis.

Attorney Insight

In some recent matters, we have seen ICE counsel begin negotiations with an offer to reduce the proposed fine by approximately 10%. Larger reductions may require further consultation with the HSI auditor or additional agency approval.

This is a matter of current agency practice rather than a statutory limitation. A 10% offer should not be assumed to represent the maximum legally available reduction.

Whether to accept an offer depends on the strength of the liability defenses, quality of the mitigating evidence, amount in controversy, expected litigation costs, collateral risks, and likely range of outcomes before OCAHO.

Small employers may receive additional consideration, but small-business status does not automatically produce a particular reduction.

What Happens After an Employer Requests an OCAHO Hearing?

A request for hearing does not immediately result in a courtroom trial. The process generally proceeds as follows:

The employer submits a timely hearing request. This must generally occur within 30 calendar days after receipt of the NIF.
Settlement negotiations may continue. The parties may resolve the matter before ICE files an OCAHO complaint.
DHS files a complaint with OCAHO. If the case is not settled, DHS may initiate the formal proceeding.
OCAHO serves the complaint and Notice of Case Assignment. The employer generally has 30 days after service to file an answer under 28 C.F.R. § 68.9(a).
The parties participate in prehearing proceedings. These may include initial disclosures, conferences, discovery, stipulations, and settlement discussions.
Either party may file dispositive motions. Many Form I-9 cases are decided in whole or in part through motions for summary decision.
Disputed factual issues may proceed to a hearing. The Administrative Law Judge considers the evidence and arguments presented by the parties.
The Administrative Law Judge issues a decision. The decision may address liability, the appropriate civil penalty, and other authorized relief.

The hearing request and the answer to the OCAHO complaint are separate documents with separate deadlines. Filing a hearing request does not eliminate the obligation to answer a subsequently filed complaint.

Failure to answer may result in a default judgment or dismissal of the employer’s hearing request.

OCAHO now uses a web-based electronic filing system. Attorneys and authorized representatives are required to use that system for OCAHO cases.

Is OCAHO Bound by ICE’s Penalty Calculation?

No. OCAHO Administrative Law Judges may independently evaluate the appropriate penalty and are not bound by ICE’s internal penalty matrix.

The government bears the burden of proving the alleged violations and any aggravating factors used to increase the penalty. OCAHO must consider the five statutory factors but is not required to assign each factor equal weight or apply ICE’s automatic 5% adjustments.

OCAHO may also consider appropriate nonstatutory factors, including proportionality, reasonableness, and—in cases supported by sufficient evidence—the employer’s ability to pay.

An employer asserting inability to pay must provide reliable financial evidence. Unsupported statements about financial hardship are unlikely to be sufficient and may expose the employer to discovery concerning its finances.

Examples of OCAHO Form I-9 Fine Reductions

Published decisions illustrate that OCAHO independently reviews both liability and the penalty. They do not guarantee similar results in another case.

OCAHO decision	Government’s proposed penalty	OCAHO result
United States v. Intelli Transport Services, Inc., 13 OCAHO no. 1319	$21,506.10 for 11 alleged violations	One charge dismissed; $4,500 imposed for 10 violations
United States v. Hartmann Studios, Inc., 11 OCAHO no. 1255	$812,665.25 for 818 alleged violations	$605,250 imposed for 808 violations
United States v. R&SL Inc., 13 OCAHO no. 1333b	$2,691,518.15 involving 1,853 employees	Certain counts dismissed; $1,527,308.90 imposed for 1,402 violations
United States v. John Ferguson Moving and Storage, LLC, 21 OCAHO no. 1651	$45,586 for 23 violations	$36,179 imposed after considering the company’s small size and other factors

In Intelli Transport, the proposed penalty was reduced by approximately 79%. The Administrative Law Judge found that penalties approaching the maximum should generally be reserved for the most egregious violations and gave mitigating weight to the employer’s small size.

In Hartmann Studios, ICE sought more than $812,000. OCAHO imposed approximately $605,000 after independently evaluating the seriousness of different violations and the statutory factors.

In R&SL, the government originally sought approximately $2.69 million. OCAHO dismissed the knowing-employment allegations and certain failure-to-present allegations before imposing approximately $1.53 million for the remaining violations.

In the 2025 John Ferguson decision, OCAHO reduced a proposed $45,586 penalty to $36,179. The court determined that a penalty near the high end of the range was not warranted and gave mitigating weight to the employer’s small size.

These cases also demonstrate that requesting a hearing does not guarantee a nominal penalty. OCAHO penalties must still be meaningful, proportionate, and sufficient to deter future violations.

When Does an OCAHO Hearing Make Sense?

Proceeding before OCAHO may be appropriate when:

ICE refuses to dismiss unsupported charges.
The violation count is materially overstated.
ICE has misclassified technical errors as substantive violations.
The company disputes that certain individuals required Forms I-9.
Knowing-hire allegations are not supported by evidence.
ICE applied an incorrect offense level or penalty range.
The proposed penalty is disproportionately close to the statutory maximum.
ICE failed to consider significant mitigating evidence.
The employer’s financial condition makes the proposed penalty unreasonable.
The difference between the settlement offer and a reasonably supportable OCAHO outcome justifies further litigation.

Settlement may be preferable when the material violations are well supported, the proposed resolution is reasonable, the cost of litigation would exceed the likely additional reduction, or continued proceedings would create unnecessary operational or collateral risk.

The decision should be made only after comparing the strength of the defenses, likely penalty range, litigation costs, and potential consequences of a published administrative decision.

Can Form I-9 Violations Lead to Criminal Charges?

Most Form I-9 paperwork cases are civil administrative matters. A Notice of Intent to Fine does not, by itself, establish criminal liability or mean criminal charges will be filed.

Criminal exposure may arise when the government believes the conduct extends beyond paperwork mistakes.

Under 8 U.S.C. § 1324a(f), a person or entity that engages in a pattern or practice of knowingly hiring or continuing to employ unauthorized workers may face criminal fines and imprisonment.

Depending on the evidence, a worksite investigation may also involve allegations concerning:

Knowingly making false attestations on Forms I-9
Using or assisting with false employment-verification documents
Identity theft or misuse of Social Security numbers
Making materially false statements to federal investigators
Concealing or harboring unauthorized workers
Altering, backdating, destroying, or concealing records
Obstruction of a federal investigation
Conspiracy or aiding and abetting
Tax, payroll, or wage-related offenses

Corporate officers, owners, HR personnel, hiring managers, supervisors, and others who personally participated in the alleged conduct may be investigated individually.

When Should Criminal-Defense Counsel Be Involved?

Coordination with white-collar criminal-defense counsel should be considered when:

ICE alleges knowing employment rather than only paperwork violations.
The company received a Notice of Suspect Documents involving a substantial number of employees.
Agents are interviewing managers, employees, or former employees.
ICE or another agency serves a grand-jury subpoena or search warrant.
Investigators request information about who authorized hiring or continued employment.
There are allegations that Forms I-9 were falsified or backdated.
The employer received information that workers were using false identities or documents.
Employees were terminated on paper but continued working through another entity, contractor, or staffing company.
There are allegations involving cash payments, off-the-books employment, or inaccurate payroll records.
A whistleblower or former employee has accused the company of knowingly hiring unauthorized workers.
Government agents are investigating owners, managers, or HR representatives personally.

In these cases, the company should carefully coordinate its response before conducting interviews, making statements to investigators, or directing employees to prepare written explanations.

An internal investigation may be appropriate, but it should be structured carefully. The company should understand who represents the organization, whether individual employees need separate counsel, how communications will be documented, and what information may ultimately have to be disclosed.

Can a Form I-9 Audit Lead to a Worksite Raid?

Yes. A Form I-9 inspection and a criminal worksite investigation can proceed separately or in parallel.

An administrative audit typically begins with a Notice of Inspection. A worksite enforcement raid generally involves a judicial search warrant based on probable cause and may include searches, seizures, employee questioning, arrests, and the collection of electronic and paper records.

Information obtained during an audit may contribute to a broader investigation. ICE may also use employee interviews, cooperating witnesses, undercover activity, payroll records, tax information, electronic communications, surveillance, and information from other government agencies.

Recent Enforcement Example

In January 2026, the Department of Justice announced that federal agents had executed search warrants at 14 Phoenix-area restaurants after an investigation that reportedly began with Notices of Inspection served in March 2025.

The government alleged knowing employment of unauthorized workers, false Form I-9 attestations, misuse of identification information, and aggravated identity theft. The allegations illustrate how an administrative Form I-9 inspection can develop into a criminal investigation and worksite enforcement operation. Criminal charges are allegations, and the individuals charged are presumed innocent unless proven guilty.

Common Mistakes After Receiving a Notice of Intent to Fine

Missing the 30-Day Hearing Deadline

The most serious procedural mistake is failing to request an OCAHO hearing within 30 calendar days after receiving the NIF.

Employers should not assume that settlement communications, requests for additional information, or informal discussions with ICE extend the deadline.

Treating the NIF Like an Invoice

A NIF is a charging document containing allegations and a proposed penalty. Paying it without a form-by-form and count-by-count review may forfeit defenses and penalty-reduction arguments.

Making General Admissions

An employer should avoid admitting that “all of the forms were wrong” or that the company “did not comply” before each alleged violation has been analyzed.

The employer may be liable for some violations but not others.

Backdating or Improperly Altering Forms

Corrections must be transparent. Employers should never conceal the original information, backdate a correction, recreate records to make them appear contemporaneous, or instruct employees to do so.

Assuming Corrections Eliminate Liability

Corrective action may demonstrate good faith and improve future compliance. It does not necessarily eliminate liability for substantive violations that already occurred.

Ignoring Knowing-Employment Allegations

A paperwork charge and a knowing-employment charge present different legal and financial risks. Allegations involving actual or constructive knowledge should receive separate analysis.

Responding Inconsistently

Statements in correspondence, settlement submissions, OCAHO pleadings, employee communications, and government interviews should be accurate and consistent.

Failing to Preserve Evidence

Relevant paper and electronic records should be preserved, including Forms I-9, audit trails, emails, hiring records, payroll information, training materials, electronic-system data, and communications with affected employees.

Failing to Answer the OCAHO Complaint

Requesting a hearing is only the first procedural step. If DHS files a complaint, the employer must separately answer it within the applicable deadline. Failure to answer may result in default or dismissal of the employer’s hearing request.

Frequently Asked Questions About Form I-9 Fines

How long does an employer have to respond to a Notice of Intent to Fine?

An employer generally has 30 calendar days after receiving the NIF to request a hearing before OCAHO. The employer should preserve evidence showing the date of receipt and calculate the deadline conservatively.

Is the fine stated in the NIF final?

Not necessarily. The NIF contains ICE’s proposed penalty. The employer may contest the charges, negotiate with ICE, request an OCAHO hearing, or challenge the penalty calculation.

If the employer does not submit a timely hearing request, ICE may issue a Final Order that cannot be appealed.

What is the maximum fine for a Form I-9 violation?

Under the currently applicable inflation-adjusted range, a paperwork violation may result in a civil penalty of up to $2,861 per charged violation. Knowing-employment penalties can reach $28,619 per unauthorized worker for a third or subsequent offense.

These amounts are adjusted periodically for inflation.

Do settlement negotiations extend the 30-day deadline?

Employers should not assume that they do. Unless the employer receives legally effective written confirmation, it should preserve its hearing rights by complying with the deadline stated in the NIF.

Does requesting an OCAHO hearing prevent settlement?

No. The employer and ICE may continue settlement negotiations after a hearing request is submitted and after an OCAHO proceeding begins.

Does requesting a hearing mean the case will go to trial?

No. Some cases settle. Others are resolved through motions, including motions for summary decision. A hearing is generally necessary only when material factual disputes remain.

Can ICE fine an employer if every employee was authorized to work?

Yes. Form I-9 paperwork violations may result in civil penalties even when the affected employees were authorized to work.

The absence of unauthorized workers may nevertheless support mitigation and may help defeat separate knowing-employment allegations.

Can an employer correct Forms I-9 after receiving a NIF?

Lawful and transparent corrections may still improve future compliance and demonstrate corrective action, but they generally do not erase substantive violations that have already occurred.

Employers should never backdate corrections or destroy the original record.

Are technical Form I-9 errors subject to fines?

A good-faith technical or procedural failure may be excused if it is timely corrected after government notice. Under 8 U.S.C. § 1324a(b)(6), ICE must generally provide at least ten business days to correct qualifying technical or procedural failures.

Substantive violations are not entitled to the same correction period.

Can ICE impose separate fines for every error on one Form I-9?

Multiple paperwork deficiencies on a single Form I-9 generally constitute one paperwork violation for that form. Separate statutory violations, such as knowingly continuing to employ an unauthorized worker, may create additional liability.

Can a small business receive a lower fine?

The size of the business is one of the five statutory penalty factors. Small-business status may support mitigation, but it does not eliminate liability or guarantee a particular reduction.

The employer should provide documentation establishing its workforce size, revenue, financial condition, and the effect of the proposed penalty.

Can ICE agree to a payment plan?

A payment schedule may be negotiable depending on the circumstances and the employer’s financial evidence. It is not automatic.

A payment plan changes when the penalty is paid; it does not necessarily reduce the total penalty.

Can OCAHO reduce an ICE fine?

Yes. OCAHO Administrative Law Judges independently evaluate the statutory factors, evidence, and proportionality of the proposed penalty. Published decisions include substantial reductions, but no particular outcome is guaranteed.

Can OCAHO dismiss individual violations?

Yes. If the government does not prove a charged violation, OCAHO may dismiss that charge. Employers should therefore review liability separately for each employee and Form I-9.

Does receiving a NIF mean the company must terminate employees?

Not necessarily. Many NIF allegations concern paperwork errors and do not establish that an employee lacks work authorization.

Separate procedures may apply when ICE issues a Notice of Suspect Documents or Notice of Discrepancies. Affected employees should generally be notified and given the opportunity specified by ICE to establish their employment authorization.

Employers must also avoid requesting more or different documents than required or engaging in citizenship-status or national-origin discrimination.

Does a NIF mean criminal charges will be filed?

No. Most Form I-9 fine proceedings are civil. Criminal exposure depends on additional facts, such as evidence of knowing employment, false attestations, fraudulent documents, identity theft, concealment, or obstruction.

Are OCAHO proceedings public?

Published OCAHO decisions are publicly available. Employers should consider the potential business, reputational, and collateral consequences of a published decision when evaluating settlement and litigation strategy.

Reducing Form I-9 Risk Before ICE Arrives

The strongest opportunity to reduce Form I-9 exposure usually arises before the government serves a Notice of Inspection.

Employers should consider:

Conducting periodic internal Form I-9 audits
Correcting existing forms through transparent procedures
Providing regular Form I-9 training to HR personnel and hiring managers
Creating written hiring, reverification, retention, and correction procedures
Reviewing electronic Form I-9 systems and audit trails
Centralizing oversight of decentralized hiring locations
Monitoring temporary work-authorization expiration dates
Confirming that former employees’ forms are retained for the proper period
Establishing procedures for government visits, audits, subpoenas, and worksite enforcement raids
Obtaining legal review before making large-scale corrections or responding to suspected document problems

An internal audit does not guarantee that ICE will decline to impose penalties. It can, however, identify and correct problems before the employer is operating under a three-business-day production deadline.

Responding to Form I-9 Fines and OCAHO Proceedings

A Notice of Intent to Fine should be treated as a time-sensitive legal matter. The employer may have defenses to individual charges, ICE’s penalty calculation, alleged aggravating factors, or knowing-employment allegations.

The response should preserve the OCAHO deadline while the employer evaluates settlement and litigation options. It should also address future compliance so the same problems do not continue or create greater exposure in a subsequent inspection.

Please do not hesitate to contact me or Myers Immigration Law with any case-specific questions or concerns at (210) 640-7424 or info@myersimmigration.com.

Related Employer-Compliance Resources

The above is informational and not intended to be legal advice. Please consult with an experienced business immigration attorney on your specific facts and circumstances before proceeding with any U.S. immigration strategy.