Higher Civil Fines Against Employers for Immigration Violations

The Departments of Homeland Security and Justice have issued a final rule in the Federal Register for February 26, 2008, raising the civil penalties imposed on employers for violations of the Immigration and Nationality Act (“INA”). The rule takes effect March 27, 2008. The new higher penalties are divided into three groups that include the following:

1. Employing Unauthorized Workers and I-9 Violations (§274A of INA)

These penalties are for the knowing employment, recruitment or referral for hire of unauthorized workers and the failure to comply with the employment verification requirements relating to completing Form I-9.

• Hiring, recruiting or referring unauthorized worker, first offense (per worker) - minimum of $375 to maximum of $3,200.
• Hiring, recruiting or referring unauthorized worker, second offense (per worker) - minimum of $3,200 to maximum of $6,500.
• Hiring, recruiting or referring unauthorized worker, third offense (per worker) - minimum of $4,300 to maximum of $16,000.
• Form I-9 paperwork violation - minimum of $110 to maximum of $1,100.

2. Unfair Immigration-Related Employment Practices (§274B of INA)

These penalties cover, among other things, discrimination based on nationality or citizenship status, and refusal by an employer to accept documents listed in Form I-9, commonly known as “document abuse.”

• Unfair practice, first offense (per worker) - minimum of $375 to maximum of $3,200.
• Unfair practice, second offense (per worker) - minimum of $3,200 to maximum of $6,500.
• Subsequent unfair practice offenses (per worker) - minimum of $4,300 to maximum of $16,000.
• Document abuse - minimum of $110 to maximum of $1,100.

3. Immigration-Related Document Fraud (§274C of INA)

These penalties apply to various prohibited activities, all relating to document fraud and listed in six subparagraphs at 8 U.S.C. §1324(c)(a).

• Document fraud, first offense for subparagraphs (1) to (4) - minimum of $375 to maximum of $3,200.
• Document fraud, subsequent offenses for subparagraphs (1) to (4) - minimum of $3,200 to maximum of $6,500.
• Document fraud, first offense for subparagraphs (5) to (6) - minimum of $275 to maximum of $2,200.
• Document fraud, subsequent offenses for subparagraphs (5) to (6) - minimum of $2,200 to maximum of $5,500.

These new penalties incorporate an adjustment for inflation as required under the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996. The last adjustment was made in 1999 although relevant law requires an adjustment every four years.