Do you ever think Immigration and Customs Enforcement (ICE) only audits certain industries? Think again. In September 2010, ICE served a Notice of Inspection (NOI) on a strip club in New York. After its investigation, ICE sought penalties of $38,335 based upon 40 violations. The strip club's violations were failing to prepare the I-9 forms within 3 days and failing to ensure proper completion of employees' I-9 forms.

In U.S. v. Pharaoh's Gentleman's Club, OCAHO determined Pharaoh’s had committed the alleged violations. However, OCAHO determined Pharaoh’s did show lack of good faith, a 5% aggravating factor, even though it backdated 22 Form I-9s because ICE failed to show the circumstances of the backdating.

Pharaoh’s major argument was it was under extreme financial pressure as a result of a sales tax audit, which cost the company $120,000, and an assessment of $63,000 for failing to pay unemployment insurance when it classified the dancers as independent contractors. OCAHO decided the assessed penalties were too harsh in light of the “setbacks the company is experiencing.” Thus, it reduced the penalties to $400 per violation for the untimely preparation of the I-9 forms and $450 per violation for the remaining 10 violations. OCAHO reduced the penalty to $17,500; thus, causing a lot less “rain” for Pharaoh’s.

This case shows the importance of timely preparation of I-9 forms as well as the willingness of OCAHO to consider an employer’s extenuating financial circumstances.