The U.S. Department of Justice recently published an interim final rule (with a request for comments) announcing significant increases in fines for immigration-related paperwork violations, which will affect civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015. Harsher financial penalties come as part of the federal government's recently-expanded efforts to ensure that employers comply with strict verification, recordkeeping, and document retention requirements, with regard to the Form I-9 (Employment Eligibility Verification).
Fines for employers who commit procedural or substantive errors when completing I-9s will now be set at a maximum of $2,156 per violation, nearly doubling the current maximum penalty of $1,100 per I-9. Additionally, companies found to employ undocumented workers can now expect to pay fines of up to $4,313 for an initial offense and up to $21,563 for each individual violation thereafter.
All employers are required by law to review any employee's original proof of identity and employment eligibility and complete the Employment Eligibility Verification Form I-9 within three days from the first date of employment. Though a seemingly simple form to complete, the complex requirements of federal immigration laws, intense government scrutiny, and simple human error often lead to considerable financial liability.
Even law-abiding employers who strive to comply with Employment Eligibility Verification rules and do not deliberately hire undocumented workers are subject to government scrutiny and could face steep fines if inspected. Beyond paperwork errors, employers may be fined for failing to retain their I-9s within the mandatory retention period.
Employers are subject to investigation by any number of agencies and investigatory units within the Department of Homeland Security, the Department of Labor, as well as the Justice Department.
Employers can, however, prevent steep financial liability by having counsel conduct internal audits, and by correcting mistakes on forms, where possible. Employers are also wise to establish a standardized I-9 training program and implement best practices for verification, recordkeeping, and retention, thereby greatly reducing the risk—and the prospective expense—of any future liability.
Scott E. Bettridge, a partner in the firm’s Immigration Practice in Miami, co-authored this post.
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