India: DOJ Imposes Increased Penalties For Immigration Violations

Last Updated: 8 August 2016
Article by Zeenat Phophalia

New regulations have come into effect from August 1, 2016 that have increased civil monetary fines for certain immigration violations.  These violations include unlawful employment of foreign nationals, employee documentation (Form I-9) violations and certain employment-related discrimination.  The regulations have stemmed from the final rule published by the US Department of Justice in wake of the Bipartisan Budget Act of 2015, and are applicable to immigration violations that occurred after November 2, 2015.

For the unlawful employment of foreign nationals, i.e., hiring foreign workers who are not authorized to work in the US, the minimum penalty has increased from $375 to $539 per violation, while the maximum has risen from $3,200 to $4,313 per violation. Employers with multiple violations now face a new maximum penalty of $21,563 for this violation.

For any violation regarding 'unfair immigration related employment practices,' the minimum penalty has increased from $375 to $445 and maximum penalty has increased to $3,563 per claim, from $3,200, for a first violation.  The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provision of the Immigration and Nationality Act.  This federal law prohibits discrimination on the basis of citizenship status and origin of a worker by an employer during hiring, firing, recruitment or referral for a fee.  It also prohibits anyunfair documentary practices during the employment eligibility verification (Form I-9 process), and retaliation or intimidation by an employer. 

With regard to employee documentation violations – i.e., failing to properly complete the Form I-9 and reviewing the necessary documents to verify employment authorization and identity of the candidates – the maximum penalty has increased from $2,156 per worker from the earlier $1,100.

The increased penalties also apply to document fraud violations, i.e., using, accepting, receiving or providing false documents to fulfil the authorized employment requirements, and to certain violations relating to the E-Verify program. The maximum penalties for such violations can be $7,512 for multiple document fraud violations.

Ways that Employers Can Ensure Compliance:

Employers are encouraged to review their compliance with the relevant federal and state laws pertaining to immigration.  They should pay particular attention to their current I-9 procedures and also review and assess their hiring practices. 

Employers should fully understand the implications of unlawful employment and perform the necessary checks before hiring potential employees to ensure that such individuals are legally authorized to work in the US.  Employers should develop and implement best practices to avoid discrimination and include them as a part or their policies.  These practices should make it mandatory for hiring managers, HR personnel any anyone else in charge of recruiting or firing individuals, to not discriminate on the basis of the employees' origin, citizenship or their immigrant/non-immigrant status in the US.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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