On June 30, 2016, the U.S. Department of Justice (DOJ) published an interim final rule that will increase the civil monetary fines for various immigration violations. The increases will take effect August 1, 2016. The increased amounts, calculated according to a statutory formula based on inflation and cost-of-living adjustments, apply to violations that occurred after November 2, 2015, but are assessed after August 1, 2016. The penalties apply to violations regarding unlawful employment of foreign nationals, paperwork (i.e., Form I-9) violations and certain employment-related discrimination based on an individual’s national origin or citizenship status, and range from $539 (per employee) for a first violation, up to $21,563 (per employee) for multiple violations.
What Penalty Increases Employers Can Expect
Specifically, the DOJ has increased the penalties for the knowing unauthorized employment of a foreign national, ranging from a minimum of $539 for a first violation (per unauthorized individual, up from $375), to a maximum of $4,313 (from $3,200); from a minimum of $4,313 for a second violation (per unauthorized violation, from $3,200) to a maximum of $10,781 (from $6,500); and from a minimum of $6,469 (from $4,300) for subsequent violations to a maximum of $21,563 (from $16,000).
With regard to paperwork violations – i.e., violations in properly completing the Form I-9 and reviewing the requisite documents to establish both employment authorization and identity of potential employees – the minimum penalty will almost double from $110 to $216 and the maximum from $1,100 to $2,156, per individual.
The penalties have also been raised for unfair immigration-related employment practices, which include the hiring or discharge of individuals based on national origin or certain types of citizenship status. For the first violation (per individual discriminated against), the minimum will increase from $375 to $445 and the maximum from $3,200 to $3,563. For the second violation (per individual discriminated against), the minimum will increase from $3,200 to $3,563, and the maximum from $6,500 to $8,908. For subsequent violations (per individual discriminated against), the minimum penalty will increase from $4,300 to $5,345, and the maximum from $16,000 to $17,816.
The increased penalties also apply to document fraud violations, i.e., using, accepting, receiving or providing false documents to meet the authorized employment requirements, and to certain violations relating to the E-Verify program. The maximum penalties for such violations reach $7,512 for multiple document fraud violations.
Ways Employers Can Prepare
Employers can take the opportunity now to review their Form I-9 and hiring practices, and be mindful of the following points to avoid any unwitting violations:
- Understand the implications of unauthorized employment: It is unlawful to hire a foreign national who does not have authorization to be employed in the U.S. Employers should ensure that their hiring team is aware of this rule and have implemented policies to ensure compliance.
- Properly Complete Form I-9: Employers are required to complete a Form I-9 to document verification of the identity and employment authorization of each new employee to work in the U.S. There are strict time requirements for the completion of the Form I-9 – for example, newly hired employees must complete and sign Section 1 no later than the first day of employment, and Section 2 must be completed within 3 business days of the first day of employment. Properly completing the Form I-9 will help avoid violations for unauthorized employment of foreign nationals and paperwork violations.
- Develop Best Practices to Avoid Discrimination in Hiring and Discharge of Employees: It is unlawful to discriminate with respect to hiring an individual for employment or discharging them from employment based on national origin or status as a U.S. citizen, permanent resident, temporary resident, refugee or asylee. Employers can take steps now to review and update their application, interview and selection practices, and keep hiring managers and human resources personnel up-to-date on current legal issues.