Immigration-Related Fines Going Up Aug. 1

By Roy Maurer Jul 11, 2016
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Penalties for hiring people not authorized to work in the U.S. and discriminating against immigrant workers will be increased to keep up with inflation, according to an announcement June 30 by the departments of Homeland Security, Justice and Labor.

The announcement related to final rules that apply to civil penalties assessed after Aug. 1, 2016, for violations that occurred after Nov. 2, 2015. The penalties cover violations of the H-1B, H-2A and H-2B temporary visa foreign worker programs; the unlawful employment of immigrant workers; violations related to I-9 forms; and immigration-related discriminatory employment practices.

"This is very significant," said Mitch Wexler, an immigration attorney and a partner at Fragomen Worldwide, based in Los Angeles. "The fines in some categories have almost doubled. One reason is due to inflation and another is an indication of the government's efforts to vigorously enforce our immigration laws."

The Federal Civil Penalties Inflation Adjustment Act Improvements Act, signed into law in November 2015, requires an initial catch-up adjustment followed by annual adjustments of the civil penalty amounts.

The minimum penalty imposed by the Justice Department for the unlawful employment of immigrant workers will rise from $375 to $539, while the maximum fine will go from $3,200 to $4,313. Violators facing multiple charges will be subject to a new maximum penalty of $21,563.

The most significant increase is for mistakes or omissions on the Form I-9, said Wexler, who noted that "fines in this category go up 96 percent." The new rules raise paperwork violations related to I-9 verification from a maximum of $1,100 to $2,156. The minimum penalty per violation increases from $110 to $216.  

"It is more important now than ever for companies big and small to make sure they have effective policies and procedures in place for properly 'I-9ing' employees during the onboarding process," Wexler said. "This includes a regular review of existing I-9s and training staff that touch this critical function." 

An initial violation for discriminating against immigrant workers can bring a new top penalty of $3,563 per charge, up from $3,200. The minimum penalty increases from $375 to $445.

Civil penalties related to the H-1B, H-2B and H-2A temporary visa foreign worker programs will be raised depending on the violation and include the following:

  • The maximum penalty for specific violations of the H-1B program, such as misrepresentations on the labor condition application, will be raised to $1,782 per violation. More-serious violations pertaining to wages or working conditions will carry a penalty of up to $7,251 per violation. The maximum penalty for displacing a U.S. worker with an H-1B worker will increase from $35,000 to $50,578 per violation.
  • The maximum penalty for violations of the H-2B program will be raised from $10,000 to $11,940 per violation. Applicable violations include those related to wages, impermissible deductions, prohibited fees and expenses, and improper refusal to employ or hire U.S. workers, among others.
  • A penalty of $1,631 will apply for each violation of an H-2A worker's contract or of the H-2A program's statutory or regulatory requirements. Penalties for willful violations of the work contract and the program's statutory or regulatory requirements will increase to up to $5,491 per violation. For violations related to the housing or transportation safety and health provisions that proximately cause the death or serious injury of any H-2A worker, an employer will be fined up to $54,373 per worker. In the event of willful or repeated violations that result in serious injury or death, an employer will be assessed penalties of up to $108,745 per worker. Failure to cooperate in an investigation could result in a penalty of up to $5,491 per violation. In addition, if an employer lays off, displaces or improperly rejects a U.S. worker for an H-2A worker, the penalty will be raised to up to a maximum of $16,312 per violation per worker.
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