Just when employers were becoming more comfortable with the complex and lengthy Form I-9, Employment Eligibility Verification that was issued in 2013, the federal government has decided to turn up the heat. First, the Department of Homeland Security (DHS) and the U.S. Department of Justice recently increased the penalties for I-9 violations. Second, DHS has announced that it will soon issue a new version of the Form I-9. These actions bring significant changes for employers.
Under the new fine schedule, employers face penalties such as the following:
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I-9 paperwork violations: $216 – $2,156 per Form I-9
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Knowingly employing unauthorized alien (first offense): $539 – $4,313 per violation
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Knowingly employing unauthorized alien (second offense): $4,313 – $10,781 per violation
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Knowingly employing unauthorized alien (third or more offenses): $6,469 – $21,563 per violation
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E-verify employers – failure to inform DHS of continuing employment following final nonconfirmation: $751 – $1,502 per violation
The DOJ also increased the penalties for document abuse and discriminatory practices in addressing I-9 issues. Document abuse usually occurs when an employer asks for specific documents or for more or different documents after the employee has already presented qualifying I-9 documents. This violates the I-9 rules, which require that the employer allow the employee to choose which document or documents to present from the I-9 List of Acceptable Documents. The employer then must review what is presented to confirm whether the document or documents meet the verification requirements.
Unfair immigration-related employment practices may occur when an employer treats job applicants and/or new hires differently based upon their immigration status while implementing I-9 procedures or addressing I-9 issues.
Penalties for document abuse and unfair immigration-related employment practices are now as follows:
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Document abuse: $178 – $1,782 per violation
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Unfair immigration-related employment practices (first offense): $445 –$3,563 per violation
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Unfair immigration-related employment practices (second offense): $3,563 – $8,908 per violation
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Unfair immigration-related employment practices (third or more offenses): $5,345 – $17,816 per violation
These new fine levels are effective as of August 1, 2016. During I-9 inspections, DHS’s Immigration and Customs Enforcement and DOJ’s Office of Special Counsel will apply these new penalties to violations that occurred after November 2, 2015. The increased penalties are a reminder of why I-9 compliance is so important. Employers should review their I-9 procedures and conduct periodic internal audits to best defend against the risk of I-9 penalties. For additional tips to achieve better I-9 compliance, as well as for updates on the government’s enforcement activities, please see our prior posts.
As to DHS’s announcement of yet another version of the I-9 form, there have been more than 10 different versions in the nearly 30 years during which the I-9 has been required. DHS expects to issue the newest version of the Form I-9 on or before November 22, 2016. DHS will allow employers to continue using the current version (issued in 2013) through January 21, 2017. Employers should use this two-month period to review and gain an understanding of the new Form I-9 before transitioning to it.
© 2016 Foley & Lardner LLP
