Immigration-Related Penalties Adjusted Up for Inflation

Practical Law Legal Update w-002-7356 (Approx. 5 pages)

Immigration-Related Penalties Adjusted Up for Inflation

by Practical Law Labor & Employment

DOJ Rule

On June 30, 2016, the DOJ issued an interim final rule adjusting for inflation the civil monetary penalties assessed for violations of IRCA as well as other statutes. The increase is being made under the Inflation Adjustment Act of 1990 (28 U.S.C. § 2461). The interim final rule, which is due to take effect on August 1, 2016, requests public comments to be submitted on or before August 29, 2016 (81 FR 42491 (June 30, 2016)).

The interim final rule:

Applies to civil penalties assessed after August 1, 2016 for violations that occurred after November 2, 2015.
Does not apply to:
- assessments made before August 1, 2016; or
- violations that occurred on or before November 2, 2015.

Employers that are found to unlawfully employ workers will now be subject to civil monetary penalties from the DOJ of at least:

$539, to a maximum of $4,313, per unauthorized worker on a first violation order (previously $375 to $3,200).
$4,313, to a maximum of $10,781, per unauthorized worker on a second violation order (previously $3,200 to $6,500).
$6,469, to a maximum of $21,563, per unauthorized worker on any subsequent violation order (previously $4,300 to $16,000).
(28 CFR 68.52(c)(1).)

The interim final rule also increases the penalties on other types of IRCA violations, including:

Unfair immigration-related employment practices.
Document fraud.
A participating employer's failure to provide notification of final nonconfirmation of an employee's employment eligibility.
(See 28 C.F.R. § 68.52(d)(1); 28 C.F.R. § 68.52(e)(1); and 28 C.F.R. § 68.52(c)(6).)

For more information about the most common penalties levied against employers, see:

DHS Rules

On July 1, 2016, DHS issued an interim final rule addressing civil monetary fines assessed by a variety of bureaus. The interim final rule is due to take effect on August 1, 2016 and requests that public comments be submitted on or before August 1, 2016 (81 FR 42987 (July 1, 2016)). The rule includes parallel penalty increases to those issued by the DOJ for violations under IRCA (see DOJ Rule). The increased penalties include those for:

Employers that are found to knowingly hire or continue to employ an unauthorized worker, in the amount of:
- between $539 and $4,313 for a first violation (previously $375 to $3,200);
- between $4,313 and $10,781 for a second violation (previously $3,200 to $6,500); and
- between $6,469 and $21,563 for a third and any subsequent violation (previously $4,300 to $16,000).
Employers that are found to commit Form I-9 paperwork violations, between $216 and $2,156 for each violation (previously $110 to $1,100).

Penalties were also increased for violations of IRCA's document fraud provisions (29 C.F.R. § 270.3(b)(i)).

Also on July 1, 2016, DHS issued an interim final rule jointly with the DOL, addressing civil monetary fines assessed in the H-2B temporary nonimmigrant worker program. The interim final rule, which is due to take effect on August 1, 2016, requests public comments submitted on or before August 15, 2016 (81 FR 42983 (July 1, 2016). The increased penalty amounts apply to any penalties assessed after August 1, 2016. Under the interim final rule, a maximum penalty of $11,940 (previously $10,000) may be assessed against employers that either:

Substantially fail to meet the terms and conditions of employing an H-2B nonimmigrant worker.
Willfully misrepresent a material fact in a petition for an H-2B nonimmigrant worker.

(29 C.F.R. § 503.23(b), (c), and (d).)

For more information on the H-2B category, see Practice Note, The H-2B Nonimmigrant Visa Classification: A Quick Guide.

DOL Rule

Also on June 30, 2016, DOL published an interim final rule addressing civil monetary fines under the INA for the D-1, H-1B, and H-2A nonimmigrant visa programs. For more information, see Legal Update, DOL Increases Civil Money Penalties, Effective August 1.

Immigration-Related Penalties Adjusted Up for Inflation | Practical Law