What Will Increase in Immigration-Related Fines Mean for Employers?
By Bruce Buchanan
Effective August 1, 2016, the penalties for a number of immigration-related violations before Immigration and Customs Enforcement (ICE), within the Department of Homeland Security, and the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), within the Department of Justice, have significantly increased through a new regulation. The new regulation applies to violations that took place after November 2, 2015.
Paperwork Violations
The DOJ regulation increases “paperwork violations” (substantive or uncorrected technical violations) related to I-9 forms from a maximum of $1,100 to $2,156. The minimum penalty per violation increases from $110 to $216. The penalties will also increase for those violations which had been between $275 and $935 depending on the percentage of I-9 forms with substantive errors, including the failure to prepare an I-9 form for an employee.
Unlawful Employment of Undocumented Immigrants
Under the new rule, the minimum penalty for the unlawful employment of undocumented immigrants jumps from $375 to $539, while the maximum goes from $3,200 to $4,313. And that’s just for a first order. For a second order, minimum penalty for the unlawful employment of immigrants increases to $3200 to $4313, while the maximum goes from $6,500 to $10,781. Employees who receive three or more orders face a new minimum penalty of $6,469 and maximum penalty of $21,563 for unlawfully employing immigrants.
OSC Violations
For unfair immigration-related employment practices, those cases enforced by the OSC, a first order will cost a new top penalty of $3,563 per person discriminated against, up from $3,200. The minimum penalty increased from $375 to $445. For second orders, the minimum penalty increases from $3,200 to $3,563 while maximum penalty is $8,908. For subsequent orders, the minimum penalty increases to $5,345 while maximum penalty is $17,816.
Document Abuse
OSC also enforces the law related to document abuse. These penalties were also increased. The minimum penalty per violation increased from $110 to $178 while the maximum penalty increased from $1,100 to $1,782.
Document Fraud Violations
For document fraud violations, the increases are substantial. For a first offense, the minimum penalty increases from $375 to $445 while maximum penalty is up from $3,200 to $3,563. For subsequent orders, the minimum penalty increases to $3,563 while maximum penalty is $8,908.
Meaning to Employers – Internal I-9 Audits
So what does this mean to employers besides greater liability for immigration-related violations? One is the importance of an internal I-9 audit to locate and correct errors before ICE and/or OSC come knocking on your door. If the potential liability for an employer is going to drastically increase, then employers should be more willing to engage in internal I-9 audits.
As I discussed in a previous article, ICE and OSC issued guidance on how to conduct an internal I-9 audit. This guidance is even more important now with liability increasing for violations located by the government agencies. And in conducting such an internal audit, it is important to be guided, conducted or supervised by experienced employer immigration counsel who knows what violations to look for and how to properly correct them.
Meaning to Employers – Less Employment of Undocumented Workers?
Will the increase in penalties for knowingly employing undocumented workers result in employers employing less undocumented workers? This seems unlikely as the penalties for a first offense for this violation is only increasing by about 25%, which seems unlikely to deter employers. On the other hand, the maximum penalty of $17,816 for three or more violations in knowingly employing undocumented workers may be enough to act as a deterrent. Only time will tell.
Meaning to Employers – More OCAHO Litigation
I would anticipate the substantial increase in the fines to lead to significantly more OCAHO litigation since historically OCAHO reduces the penalties by between 30 and 45% from the penalties assessed by ICE. More litigation before OCAHO will put a great strain on OCAHO as they do not have any permanent Administrative Law Judges after one retired and the other transferred to another government agency. This will likely lead to a lengthier period between the issuance of a Complaint and a decision.
This leads to an interesting question – will ICE and OCAHO legal counsel be more willing to compromise on the penalties in order to avoid lengthy delays in litigation. And will their supervisors put more pressure on them to reach these negotiated settlements in order to avoid clogging the court docket. Again, only time will tell on these situations.
18-Month Redesignation and Extension of TPS for Syria
On August 1 the Department of Homeland Security (DHS) announced that it has redesignated Syria for Temporary Protected Status (TPS) and it has extended the existing TPS designation through March 31, 2018. Eligible nationals of Syria (or individuals who last habitually resided there) can now register or re-register for TPS. There is a 60-day re-registration period that runs from August 1, 2016 – September 30, 2016. Qualified individuals who do not currently have TPS but who wish to obtain it may apply during the 180-day initial registration period that runs from August 1, 2016 – January 30, 2017.
The 18-month extension allows TPS re-registrants to apply for a new Employment Authorization Document (EAD). Eligible TPS Syria beneficiaries who re-register during the 60-day period and request a new EAD will receive one with an expiration date of March 31, 2018. Some re-registrants may not receive their new EADs until after their current work permits expire. Therefore, USCIS is automatically extending current TPS Syria EADs with a September 30, 2016 expiration date for an additional six months. These existing EADs are now valid through March 31, 2017.
For more information, including instructions on how to register or re-register, please click here.
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