Raising the Stakes: U.S. Attorney General and Homeland Security Secretary Announces Large Increases for Immigration Violations

March 6, 2008

It just got a good deal more expensive for employers who knowingly violate employment-related immigration laws. In a move that many feel shifts more of the burden for immigration enforcement onto employers, the Departments of Homeland Security and Justice announced that employers will now pay 25% more in civil monetary penalties for violations involving hiring, failing to hire, documenting and employing illegal workers.  These changes become effective March 27, 2008 for all U.S. employers.  It is also likely that these changes will disproportionately affect employers in the food service, construction, agricultural and manufacturing industries, as these industries often rely heavily on workers whose legal status may be in question.

Form I-9 Violations

The Immigration Reform and Control Act mandates that all U.S. employers are responsible for verifying their employees’ employment eligibility. Thus, employers must complete an Employment Eligibility Verification form (Form I-9) for all employees, including U.S. citizens.  An employee must complete Section 1 of Form I-9 no later than the close of business on the employee’s first day of work.  The employer must complete Section 2 of Form I-9 by the end of the employee’s third day of work and maintain a copy of such form for as long as that employee is employed, and thereafter for three years after date of hire or one (1) year following the employee’s termination, whichever is longer.  Penalties for violations of Form I-9 requirements, including failure to require employees to produce documents that “reasonably appear to be genuine,” are set at $110 to $1,100 per violation.   

Employers do not have to be documentation experts. However, if an employee presents an employer with documents that do not reasonably appear to be genuine, employers must refuse to accept the documents and ask the employee for other identification from the list of approved documents on the I-9 form.  An employer may not continue employing someone who cannot present documentation meeting these requirements.

Knowing Employment of Undocumented Workers

Currently, employers who knowingly employ undocumented or illegal workers face fines from $275 to $2,200 per illegal worker. Additionally, under the old system, an employer faced a potential fine of $11,000 for three or more offenses. After March 27, 2008, employers who knowingly hire illegal workers will face initial fines from $375 to $3,200 per violation.  Chronic violators will face penalties of up to $16,000.

Unfair Immigration-Related Employment Practices

While it is important for employers to be vigilant about their employment-related immigration documentation, there are two potential sources of liability for employers who discriminate against applicants or employees on the basis of their immigration status or national origin:

  • It is an unlawful for an employer who employs more than three (3) employees to discriminate against anyone (other than an illegal or undocumented alien) with respect to the hiring, recruitment or referral for a fee because of that employee’s citizenship status.  8 U.S.C. § 132(b).  For example, it is unlawful to refuse to hire an employee who has a valid work visa, simply because the employee is not a U.S. citizen.  Additionally, it is unlawful to terminate an employee because of that employee’s citizenship status.  Id.  The Department of Homeland Security issues civil fines for these violations, which will increase March 27, 2008 and will now range from $375 to $ 3,200 for a first offense, up to a maximum of $16,000 for repeat offenders.
  • Additionally, employers who employ more than fifteen (15) employees face potential liability for discriminating against applicants or employees because of their national origin, pursuant to Title VII of the Civil Rights Act of 1964.  Damages for violations of Title VII can be as high as $500,000 in some circumstances.

What Is An Employer To Do?

The increases in civil penalties and heightened focus on enforcement at the Department of Homeland Security should motivate all employers to get serious about their immigration law responsibilities. Thus, it is a good idea for employers to ensure that their human resources professionals and hiring managers are well trained and complying with employment-related immigration laws.