Fines Increasing: Fresh Incentive for Employer Immigration Law Compliance

The U.S. Department of Justice (DOJ) issued an interim final rule that increases significantly the monetary fines assessed against employers for violations of the 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 1st, 2016, for any violations occurring after November 2, 2015.

Monetary penalties are climbing 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 increased from $4,300-$16,000 per offense to a range of $6,469-$21,563.

Additionally, the fines for Form I-9 paperwork violations (the most common violations cited in an investigation) 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 monetary penalty will still likely be much greater than before. This is especially the case if the employer is cited for multiple offenses.

Fines under IRCA for unfair immigration-related employment practices (including immigration-related discrimination and document abuse). The penalty range for a first-time discrimination violation, which was previously $375-$3,200, has now increased to $445-$3,563. Additionally, penalties second-time violations have increased 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.

Increased fines provide employers with an incentive to ensure that their immigration compliance is in order. Employers should review immigration procedures and make sure that the employees responsible for the Form I-9 process are properly trained we remind our readers that I-9 self audits are a prudent way to proceed. The government announced that a new version of the Form I-9 will be published and that all employers must use that Form after January 21, 2017. Employers should make certain that HR professionals and others on their staff responsible for the employment verification process are aware of this change and have familiarized themselves with the new I-9 form before using it.

As previously stated, employers 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. The DOJ and ICE published joint guidance which is readily available online which is specifically designed to help employers conduct internal audits and to correct Form I-9s.

Recent increases in fines underscores the importance of sound immigration law compliance. Monitoring of Form I-9 procedures and other proactive measures can help employers avoid liability and mitigate the potential penalties.

Nachman Phulwani Zimovcak (NPZ) Law Group, P.C., immigration law