The Department of Justice has raised the bar on penalties for violations of federal immigration law. On June 30, 2016, DOJ issued an interim final rule that goes into effect on August 1, 2016. This rule, implemented as an inflation adjustment, increases the fines for employing unauthorized workers, for Form I-9 paperwork violations, and for immigration-related discrimination. These new fines increase the penalties from 35% to 96% depending on the nature and severity of the violation.
The Immigration Reform and Control Act of 1986 makes unlawful three general categories of activity:
- Knowingly hiring or continuing to employ an unauthorized worker;
- Violating the Form I-9 paperwork rules; and
- Engaging in unfair immigration-related employment practices.
The impact of these newly increased fines can be severe. Where before, employing a single unauthorized worker resulted in a fine ranging from $375 – $3,200 for a first offense, the new rule adjusts the range to $539 – $4,313. And for third-time and subsequent offenses, a company now faces a fine range of $6,469 – $21,563 per violation, up from the prior range of $4,300 – $16,000.
Moreover, Form I-9 paperwork violations will nearly double under the new rule. The prior fine range of $110 – $1,100 per violation will increase to $216 – $2,156 per violation. Under this adjustment, what some companies may have viewed a tolerable risk of a $30,000 to $50,000 fine for having poor I-9 documentation now jumps to around a $60,000 to $100,000 fine for the same set of I-9s.
Violations for immigration-related unfair employment practices have similarly increased. These fines are implemented for discrimination, for document abuse, and for document fraud.
This increase in fines presents companies with an incentive to review their workforce and Form I-9 files and process. A Form I-9 audit conducted internally or with the assistance of outside counsel can shed light on areas of concern and allow companies to correct violations before they become fines. To aid such a review, Immigration and Customs Enforcement and DOJ recently provided joint guidance to assist companies in conducting internal audits. In addition, training employees who conduct the I-9 and onboarding process in tandem with an audit can position a company to avoid these increased fines going forward.
While compliance with federal immigration law is sometimes an afterthought amid the constant demands of business, it cannot be ignored. DOJ’s new rule provides a reminder that corrective action now can mitigate potential fines and reputational harm in the future.