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
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
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
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
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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