In this age of strict Employment Eligibility Verification form (I-9) enforcement, an audit by Immigration and Customs Enforcement (ICE) agents is a concrete possibility that will occur with little warning, for any reason. Courts have upheld ICE’s position limiting good faith as a defense, so when auditors detect errors, fines will likely follow.
How does ICE Calculate Fines After An Audit?
ICE calculates base fines through set schedules, but the supervising agent is empowered with the discretion to increase or decrease the total by as much as 25% through the five subjective factors composing the “Enhancement Matrix.” This opens a limited opportunity to drastically reduce the financial penalty, even after the audit has revealed deficiencies that reach the level of punishment. Engaging a company like Lookout Services which is that window to reform I-9 procedures and construct a solid methodology for the future demonstrates to auditors a commitment to correcting flaws and adopting a culture of full compliance. Taking such a proactive step could tip the discretionary balance in your favor. As fines now routinely reach millions of dollars, that difference could be substantial.
Why ICE Fines Appear Arbitrary
The controlling legislation seeks to negate the chance that a business would knowingly employ undocumented workers but also to ensure that employers fear the risks of noncompliance enough to truly scrutinize verification documents. Even as courts permit ICE to limit good faith mistakes as a defense, the agency understands that genuine accidents do happen. The regulatory answer to reconciling these disparate values with American principles of fairness while also sharpening the law’s teeth is to bestow a certain amount of discretion through the Enhancement Matrix. Agents use the matrix to factor fewer tangible findings into the final result. This makes ICE fines somewhat arbitrary, but Lookout Services may be able to make that subjectivity work for you when you need it most.
ICE fines are based on two schedules that are established by federal law. The first considers how many unauthorized workers were knowingly employed and how many times the business has been caught violating immigration laws. The second focuses on the number of substantive violations and how many offenses the company has on record. Each number is expressed as a percentage of the company’s total workforce, and each percentage determines the amount of the fine. The totals generated by the two schedules are added together, and the sum forms the non-discretionary fine.
The subjectivity comes into play at the Enhancement Matrix stage. The matrix is used to either enhance or mitigate the fine by up to 25%, as determined by the agent’s personal assessment of these five factors.
|Business size||+ 5%||– 5%||+/- 0%|
|Good faith||+ 5%||– 5%||+/- 0%|
|Seriousness||+ 5%||– 5%||+/- 0%|
|Unauthorized aliens||+ 5%||– 5%||+/- 0%|
|History||+ 5%||– 5%||+/- 0%|
|Cumulative adjustment||+ 25%||– 25%||+/- 0%|
The Enhancement Matrix is your opportunity to significantly reduce the fine by signaling your company’s commitment to live within the bounds of compliance by inviting Lookout Services to fix what was broken in your procedures. Auditors are familiar with Lookout Service’s products and respect our reputation for excellence. Bringing us in to solve your problems means that you are serious about compliance. That knowledge gives them the reassurance they need to weigh the mitigating factors in your favor because they recognize that your company will not be one of their repeat offenders.
Notice that ICE agents are on the way often creates chaos and fear, but it’s not too late at that stage to affect the outcome. Not only will Lookout Services help you through the audit, but we will also institute airtight procedures so that both you and ICE can part ways with peace of mind.