Seyfarth Synopsis: New regulations will increase fines on U.S. employers for unlawfully employing foreign nationals and engaging in unfair employment practices related to immigration.
In the wake of the Bipartisan Budget Act of 2015, the U.S. Department of Justice (DOJ) published an interim final rule on June 30, 2016 that will increase potential penalties on U.S. employers for both hiring foreign nationals who are unauthorized to work in the U.S. and for engaging in immigration-related unfair employment practices.
The regulations stemming from the final rule, effective August 1, 2016, will apply to violations that took place after November 2, 2015. The minimum penalty for the unlawful employment of foreign nationals will rise from $375 to $539 per violation, while the maximum will increase from $3,200 to $4,313 per violation. Employers with multiple violations will face a new maximum penalty of $21,563 for employing foreign nationals who are unauthorized to work in the U.S. The new regulations will also increase Form I-9 paperwork violations from the maximum $1,100 to $2,156 per worker.
Federal law prohibits employers from unlawfully hiring foreign nationals in the U.S. or from hiring an individual in the U.S. without verifying the identity and employment authorization of individual. All U.S. employers must ensure proper completion of Form I-9 for each individual hired for employment. This includes citizens and noncitizens. The DOJ's Office of the Chief Administrative Hearing Officer maintains authority for fines resulting from Form I-9 violations.
The maximum penalty for a first violation regarding unfair immigration-related employment practices will increase to $3,563 per claim, up from $3,200. The DOJ's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provisions of the Immigration and Nationality Act. Federal law prohibits the following:
- Citizenship status discrimination in hiring, firing, or recruitment or referral for a fee;
- National origin discrimination in hiring, firing, or recruitment or referral for a fee;
- Document abuse (unfair documentary practices during the employment eligibility verification, Form I-9, process); and,
- Retaliation or intimidation
Seyfarth Shaw's Immigration Compliance Center (ICC) assists clients with the increasingly complex landscape surrounding I-9 verification issues (including E-Verify participation, Policy Development, Training, and Internal Audits), social security mismatch letter best practices, state-level immigration obligations, ICE raids, and associated matters.
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