Enacted in 2017, the IWPA sought to impose rules on employers' conduct by:

• Requiring employee notices related to an I-9 audit;
• Prohibiting the reverification of an employee's work status in a manner inconsistent with federal law; and
• Prohibiting employers from voluntarily cooperating with federal law immigration enforcement by providing employee records or allowing access to nonpublic areas of the worksite without a judicial warrant.

The federal government challenged the law, and the most recent decision before the Ninth Circuit Court of Appeals allowed only enforcement of the I-9 inspection notice provision.1

Notice Requirements

The Immigrant Worker Protection Act created several notice obligations for employers faced with an inspection.

An employer that fails to follow any of these notice requirements can be fined between $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation.2

This law doesn’t intend to restrict or limit an employer’s compliance with any E-Verify memorandum of understanding into which the employer has entered.

Pre-Inspection Notice Requirements

The Act requires employers to post a notice to all current employees informing them of any federal immigration agency's inspections of Forms I-9 or other employment records within 72 hours of receiving notice of the inspection. The notice must be posted in the language normally used to communicate employment-related information.3

The notice must include:

• The name of the immigration agency conducting the inspection;
• The date the employer received notice;
• The nature of the inspection, if known; and
• A copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms (Notice of Inspection).

• The Labor Commissioner has created a model Notice of Inspection of I-9 Employment Eligibility Verification for employers to use.

• Notice to Employee: Government Inspection of Employment Eligibility Records
• Notice to Employee: Government Inspection of Employment Eligibility Records - Spanish

This notice must also be given to the collective bargaining representative, if any; this is separate from the above posting requirement.

You must also provide, upon reasonable request, a copy of the federal Notice of Inspection to an employee.

Post-Inspection Notice Requirements

After the inspection is concluded, the employer has notice obligations with respect to “affected employees,” which include employees identified by the inspection results as potentially lacking work authorization or having document deficiencies.4

Within 72 hours of receiving the results of the inspection, you must give each current affected employee and the employee's collective bargaining representative:

• A copy of the written immigration agency notice informing you of the inspection results (this is often called, a Notice of Suspect Documents); and
• A written notice of the employer's and affected employee's obligations arising from the inspection, containing:
• A description of all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee;
• The timeframe for correcting any potential identified deficiencies;
• The date and time of any meetings with the employer to correct identified deficiencies; and
• The employee's right to representation during this meeting.

This notice must relate only to the affected employee and must be hand delivered at the workplace if possible. If hand delivery at the workplace is not possible, it must be delivered by mail and email (if the email address of the employee is known) and to the employee's collective bargaining representative.

• Create and document processes to meet all notice requirements. The 72-hour timeframes are short, and standardized posting and notice processes will help you meet your compliance obligations. Consult a labor or immigration attorney with any questions or concerns.

Penalties and Fines for Failing to Comply with Worker Authorization Requirements

You may be subject to substantial federal penalties and fines for failing to comply with worker authorization requirements. Depending on the type of violation, federal penalties range from $220 to $19,242 per violation, with enhancements possibly adding up to an additional 25 percent. Details on these penalties are available on the USCIS website.

State law also imposes fines and penalties for violations. For instance, document abuse carries a penalty of up to $10,000 per violation.5

Violations of the Immigrant Worker Protection Act carry fines from $2,000 to $10,000 for each violation.6

Penalties for Incorrect Completion of Form I-9

Compliance with Form I-9 requirements is an essential business practice. Employers are responsible for reviewing and ensuring employees fully and properly complete section 1 of the Form I-9. Employers are responsible for filling out section 2, reviewing documents and signing the form. Failure to comply can lead to fines.

In one federal case, the court upheld $173,000 in fines against an employer who failed to correctly complete the Form I-9.7

The employer did not have consistent, trained staff in charge of I-9 compliance, and was audited for Form I-9 violations.

Penalties were imposed on the employer for numerous improper Form I-9 practices, including:

• Copying and retaining documents verifying its employees' eligibility to work, but not fully completing the Form I-9;
• Not ensuring that employees properly completed Section 1 of Forms I-9;
• Not properly completing Forms I-9 when employees were rehired; and
• Failing to sign Forms I-9.

In another case, the court upheld a $305,000 penalty against an employer who tried to blame its HR director to avoid liability for Form I-9 compliance failures and unauthorized worker problems. The well-credentialed HR director had dodged his Form I-9 duties to the point “of literally stuffing the government correspondence in a drawer and never responding.” Since the HR director was the company’s agent, the court ruled the company was liable for the director’s failures to perform his duties.8

As these rulings demonstrate, employers cannot take complying with Form I-9 requirements lightly.

For more information, see Completing the Form I-9.

1. United States v. State of California, 314 F. Supp. 3d (E.D. Cal. 2018); United States v. California, 921 F.3d 865 (9th Cir. 2019)