Fines Increasing: Fresh Incentive for Employer Immigration Law Compliance

by Bradley Arant Boult Cummings LLP

The U.S. Department of Justice (DOJ) has issued an interim final rule that increases significantly the monetary fines assessed against employers for violations of federal immigration law.

Under the Immigration Reform and Control Act of 1986 (IRCA), employers are prohibited from:

  • Knowingly hiring or employing unauthorized workers;
  • Failing to properly complete employee Form I-9s; and
  • Engaging in unfair immigration-related employment practices.

Under the new DOJ rule (issued as a mandated adjustment for inflation), the fines for employer violations of IRCA increase by as much as 96 percent, depending on the type of violation and the nature and severity of the offense. The increased fines apply to penalties assessed after August 1, 2016, for any violations occurring after November 2, 2015.

How much have the fines gone up?

The monetary penalties are climbing considerably across the board. The fine for a first-time violation for employing a single unauthorized worker has increased from a minimum/maximum range of $375-$3,200 to a range of $539-$4,313, and there are similar adjustments to the penalties for subsequent violations. For third-time and subsequent offenses, the range of potential fines has jumped from $4,300-$16,000 per offense to a range of $6,469-$21,563.

In addition, the fines for Form I-9 paperwork violations have almost doubled, from a range of $110-$1,100 per offense to a range of $216-$2,156. Even if an employer is cited only for Form I-9 paperwork violations, the resulting monetary penalty will still likely be much greater than before, particularly if the employer is cited for multiple offenses.

The fines under IRCA for unfair immigration-related employment practices, including immigration-related discrimination and document abuse, have also increased, although not as drastically. For example, the penalty range for a first-time discrimination violation, which was previously $375-$3,200, has increased to $445-$3,563. Similarly, the penalties for a second-time violation have jumped from $3,200-$6,500 to $3,563-$8,908, while the range of penalties for subsequent violations has increased from $4,300-$16,000 to $5,345-$17,816.

What can employers do?

These increased fines provide employers with a new impetus to ensure that their immigration compliance house is in order. Employers should review their procedures and make sure that the employees responsible for the Form I-9 process are properly trained. (I recently posted an article that included tips to help employers avoid liability when completing their Form I-9s.) The government has recently announced that a new version of the Form I-9 will be published in November 2016 and that employers must use that Form after January 21, 2017. Employers should make certain that those responsible for Form I-9 compliance are aware of this change and have familiarized themselves with the new form before using it to verify new employees. (I will talk more about the new Form I-9 in a future blog post.)

Employers also should consider auditing their existing Form I-9s, either internally or with independent professional assistance. In the event of an investigation by U.S. Immigration and Customs Enforcement (ICE), missing, incomplete, or poorly completed Form I-9s will likely result in significant Form I-9 paperwork fines and may be considered evidence to support a more serious charge that the employer has knowingly employed unauthorized workers. A properly conducted Form I-9 audit can help identify any problems with the existing Form I-9s and give the employer an opportunity to correct any deficiencies before ICE comes calling. The DOJ and ICE have recently published joint guidance specifically designed to help employers conduct these internal audits and take corrective action on their Form I-9s.

The recent increase in fines underscores the importance of sound immigration law compliance. Diligent monitoring of Form I-9 procedures and other proactive measures can help employers avoid liability and mitigate the potential penalties.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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