Department of Homeland Security and Department of Justice Significantly Increase Civil Monetary Penalties for Violations Related to the Employment of Unauthorized Workers

The Department of Homeland Security (DHS) and Department of Justice (DOJ) jointly published a final rule in the Federal Register on February 26, 2008 that adjusts for inflation the civil monetary penalties assessed against employers for violations of the Immigration and Nationality Act (INA) provisions related to the employment of unauthorized aliens. The revised sanctions take effect March 27, 2008.

The Federal Civil Penalties Inflation Adjustment Act of 1990 authorizes the regular evaluation of civil monetary penalties to maintain the deterrent effect and to ensure proper collection and accounting of penalties. Specifically, three sections of the INA have been impacted: Section 274A, governing the employment eligibility verification (I-9) process; Section 274B, governing immigration-related unfair employment practices; and Section 274C, governing immigration-related document fraud. DHS has enforcement responsibility over the first two provisions; DOJ has enforcement responsibility over the third.

How This Affects You

As of March 27, 2008, employers that knowingly employ undocumented workers face the following civil monetary fines:

• $375 to $3,200 for each undocumented individual
• $3,200 to $6,500 for each undocumented individual, if the employer has previous violations
• $4,300 to $16,000 for each undocumented individual, if the employer has been subject to more than one cease and desist order

Employers participating in the E-Verify program that fail to notify DHS of a final nonconfirmation of an employee’s employment eligibility can be fined not less than $550 and not more than $1,100.

Employers that fail to properly comply with the employment eligibility verification process (I-9) as required by law face unchanged civil monetary penalties that range from $110 to $1,100 per incomplete Form I-9.

Employers that engage in unfair immigration-related employment practices face civil penalties of:

• Not less than $375 and not more than $3,200 per individual discriminated against
• Not less than $3,200 and not more than $6,500 per individual discriminated against for a second offense
• Not less than $4,300 and not more than $16,000 per individual discriminated against for a third offense

Employers that engage in document fraud face civil monetary penalties of:

• $375 to $3,200 for each document used, accepted, or created, and for each instance of use
• $3,200 to $6,500 for each document that is subject of a violation where the person or entity was previously subject to a cease and desist order

Morgan Lewis & Bockius will update you with any new information. If you have any questions about any of the issues raised in this Morgan Lewis Immigration Alert, please contact:

San Francisco
A. James Vázquez-Azpiri
415.442.1343
ajvazquez@morganlewis.com

Lance Nagel
415.442.1345
lnagel@morganlewis.com
 
Washington, D.C.
Eleanor Pelta
202.739.5050
epelta@morganlewis.com

Eric S. Bord
202.739.6040
ebord@morganlewis.com

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