I-9, E-Verify, and Worksite Enforcement Actions
As immigration enforcement efforts increase, we expect a significant increase in worksite enforcement efforts as well.
As noted in prior updates, worksite enforcement actions may take many forms: H-1B and L-1 site visits by U.S. Citizenship and Immigration Services (USCIS); U.S. Department of Labor (DOL) audits of H-1B/ E-3 wage documentation; Immigration and Customs Enforcement, Homeland Security Investigations (ICE HSI) workplace raids; ICE HSI I-9 audits; USCIS E-Verify Desk Review; U.S. Department of Justice Immigrant and Employee Rights Section (DOJ IER) prosecution of employer for discrimination against employees in the I-9 process, etc.
In light of the above, employers should prioritize review of their current compliance processes and procedures, consider a proactive I-9 audit, and ensure staff responsible for compliance in these areas is fully trained. The I-9 and E-Verify processes are far from self-explanatory, and government guidance on proper completion changes frequently. As such, ongoing monitoring of compliance in this area is necessary.
FREE WEBINARS ON BASIC I-9 AND E-VERIFY COMPLIANCE
Trainings have the benefit of increasing knowledge and compliance. They also serve as documentation of an employer’s good faith attempt at compliance in the event of an audit. USCIS offers a variety of free webinars for employers on I-9 and E-Verify Compliance.
April 2017 I-9 Webinars – an overview of the Form I-9 process, including step by step instructions on how to complete each section, retention and storage.
Wednesday, April 19, 2017 at 3:00 PM ET Register Now
Thursday, April 27, 2017 at 1:00 PM ET Register Now
April 2017 E-Verify Free Webinar Schedule – a detailed overview of the E-Verify Program specifically for existing users. Topics include Form I-9, user roles, case alerts, how to handle a TNC, and common user mistakes.
Wednesday, April 26, 2017 at 2:00 PM ET Register Now
INCREASED PENALTIES FOR I-9 AND RELATED VIOLATIONS
Penalties for violations may include civil monetary penalties, criminal prosecution when an employer’s violation is knowing or willful, and the consequences of bad press to business operations.
On 8/1/16 the government issued notice of increased penalties. The increased penalties apply retroactively to I-9-related violations occurring after 11/2/15. Some of the increases are significant. For example, the penalty I-9 “paperwork violations” (non-corrected technical errors or substantive errors) increased by 96%, increasing from $110 – $1,100 per violation (I-9) to $216 – $2,156 per violation.
Violations which occurred prior to 11/2/15 remain subject to the old fine schedule.
Calculation of fine amount: To determine where the fine will be levied within the range, ICE uses a baseline formula of dividing the number of violations by the number of I-9s that should have been on file – that gives them the percentage of error rate, and determines where within the range the fine should be levied. ICE then adds or subtracts up to 25% based on where the employer falls on 5 enhancement/ mitigation factors: Business size, good faith, seriousness, presence of unauthorized individuals, and history of prior violations. If ICE audits the same employer a second or third time, the fines per violation increase.
|Violation||Prior Penalty (in$)||Increased Penalty (effective 8/1/2016 for violations after 11/2/2015) (in$)|
|Knowingly hiring or employing unauthorized aliens – First Offense (per individual)||Min. 375
|Knowingly hiring or employing unauthorized aliens – Second Offense (per individual)||Min. 3,200
|Knowingly hiring or employing unauthorized aliens – Third or Subsequent Offense (per individual)||Min. 4,300
|I-9 Paperwork errors (errors or omissions on I-9 form) (per relevant individual)||Min. 110
|Employer’s failure to notify government of continuing employment of individual subject to final non-confirmation of employment eligibility (per individual)||Min. 500
|Unfair immigration-related employment practices, first order (per individual)||Min. 375
|Unfair immigration-related employment practices, second order (per individual)||Min. 3,200
|Unfair immigration-related employment practices, subsequent order (per individual)||Min. 4,300
|Unfair immigration-related employment practices, document abuse (per individual)||Min. 110
|H-1B violations pertaining to strike/lockout or displacement of U.S. workers; notification or misrepresentations on labor condition applications, early-termination or filing fees paid by employee (per violation)||Max. 1,000||Max. 1,782|
|H-1B violations pertaining to willful failure pertaining to wages/working conditions, notification, labor condition application specificity, recruitment, or discrimination against an employee (per violation)||Max. 5,000||Max. 7,251|
|H-1B willful violation, where an employer (whether or not the employer is an H-1B-dependent employer or willful violator) displaced a U.S. worker employed by the employer in the period beginning 90 days before and ending 90 days after the filing of an H-1B petition; or willful misrepresentation of a material fact on the labor condition application (per violation)||Max. 35,000||Max. 50,758|
|H-2B violations related to the failure to pay wages or honor the terms and conditions of a worker’s employment, unlawful termination of employment or layoffs||Max. 10,000||Max. 11,940|