The Department of Justice has issued a new rule increasing penalties for I-9 paperwork violations, unlawfully employing unauthorized workers, and unfair immigration-related employment practices. The increase was triggered by the 2015 Bipartisan Budget Act, which revised the formula for adjusting federal agency penalties for inflation. The increase applies to civil penalties assessed after August 1, 2016, for violations that occurred after November 2, 2015. The increases do not apply to violations that occurred on or before November 2, 2015. Additionally, they do not apply to penalties assessed prior to August 1, 2016, even if the violation occurred after November 2, 2015.
The new rule imposes substantial increases in penalties. For example, the penalty for a first offense of employing an unauthorized alien has increased from a range of $375 to $3,200 to a range of $539 to $4,313. The maximum penalty for the unauthorized employment of aliens has increased from $16,000 to $21,563 per alien.
More detailed information about the most significant penalty increases is set forth below.
Penalties for the unlawful employment of aliens (per unauthorized alien)
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Prior Penalty
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New Penalty
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First Order
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$375 - $3,200
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$539 - $4,313
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Second Order
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$3,200 - $6,500
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$4,313 - $10,781
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Subsequent Orders
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$4,300 - $16,000
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$6,469 - $21,563
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I-9 Paperwork violations (per individual)
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Prior Penalty
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New Penalty
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$110 - $1,100
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$216 - $2,156
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Unfair immigration-related employment practices (per individual discriminated against)
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Prior Penalty
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New Penalty
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First Order
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$375 - $3,200
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$445 - $3,563
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Second Order
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$3200 - $6500
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$3,563 - $8,908
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Subsequent Orders
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$4,300 - $16,000
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$5,345 - $17,816
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IRCA Document Abuse
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Prior Penalty
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New Penalty
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$110 - $1,100
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$178 - $1,782
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Document Fraud (relating to more serious violations)
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Prior Penalty
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New Penalty
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First Order
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$375 - $3,200
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$445 - $3,563
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Subsequent Order
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$3,200 - $6,500
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$3,563 - $8,908
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Document Fraud (relating to less serious violations)
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Prior Penalty
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New Penalty
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First Order
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$275 - $2,200
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$376 - $3,005
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Subsequent Order
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$2,200 - $5,500
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$3,005 - $7,512
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Employers' Bottom Line
Companies now face substantially more monetary liability for violations of I-9 paperwork rules and deficient immigration-related employment practices. It is crucial, more than ever, for companies to correct I-9 paperwork errors and amend their I-9 compliance policies and practices before a government I-9 audit or other immigration-related investigation. All companies should conduct periodic internal I-9 self-audits to correct errors before a government I-9 audit. Further, companies should take steps to set up policies and practices which can later provide a good faith defense against fines resulting from I-9 violations. Of course, these steps are only effective at mitigating liability if done properly. Therefore, it is advisable to consult with your immigration counsel prior to starting an internal audit or establishing related procedures.
If you have questions regarding the increase in penalties, I-9 compliance practices and policies, or have other business immigration questions, please contact Geetha Adinata, gadinata@fordharrison.com, or Charlie Roach, croach@fordharrison.com, in FordHarrison's Business Immigration practice group. You may also contact the FordHarrison attorney with whom you usually work.