On August 1, 2016, fines for I-9 Form paperwork violations will increase from $110 - $1,100 per form to $216 - $2,156 per form due to the implementation of inflation adjustments required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 [Pub. L. 114-74] (Inflation Act). First offense penalties for knowingly hiring or employing unauthorized workers increase from $375 - $3,200 to $539 - $4,313.

Both the Department of Homeland Security (DHS)  and the Department of Justice (DOJ) proposed interim rules for comment regarding the implementation of increased fines for various immigration related violations, including those related to the I-9 Form, on July 1, 2016, and June 30, 2016, respectively. In addition, the Department of Labor (DOL) will also increase penalties for H-1B related violations, such as misrepresentations of material facts on the Labor Condition Application from a maximum of $1,000 per violation to $1,782. In addition, the maximum penalty for an employer displacing a U.S. worker employed by the employer in the period starting 90 days before and ending 90 days after the filing of an H-1B petition in conjunction with certain willful violations increases from a maximum of $35,000 to $50,758 per violation.

The chart provided in the proposed interim rules regarding immigration-related violations related to the knowing hire of undocumented workers or for I-9 related violations is set forth below:

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When may the enhanced I-9 related fines be applied?

The increased fines may be imposed as to violations occurring after November 2, 2015, as long as the penalty is assessed after August 1, 2016.

What should employers do?

Assess exposure related to immigration law compliance with an I-9 audit, since most corrected Form I-9 errors reduce penalties (assuming the error may be corrected). 

What are the current (pre-August 1, 2016) penalty recommendations by Immigration and Customs Enforcement (ICE) as to I-9 paperwork and for knowing/continuing hire violations for reference? 

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Obviously, we will have to wait and see if ICE applies the same approach for the increased fines, but it makes sense to expect a similar approach.