The Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE) recently announced another extension, through July 19, 2020, of its COVID-19 temporary policy of deferring the physical presence requirements associated with Form I-9 compliance in relation to hiring and re-verifying certain remote employees. However, within days of announcing this reprieve for employers, DHS and the Department of Justice (DOJ) published their annual, Civil Monetary Penalty Adjustments for Inflation rules increasing penalties against employers found in violation of immigration-related employment practices including I-9 paperwork deficiencies, unauthorized employment violations, and unfair, discriminatory employment practices.
Extension of Temporary Polices Related to I-9 Flexibility
In the early days of the COVID-19 pandemic, as many employers were adjusting to lockdowns and closures, ICE announced it would exercise its discretion by temporarily permitting employers with workers taking physical proximity precautions to inspect the Form I-9 identity and employment eligibility documents remotely using video links (e.g., Skype, FaceTime or similar), fax or email. The specific guidelines and limitations of this policy were detailed in our earlier post. As explained above, employers can continuing taking advantage of these flexible I-9 practices through July 19, 2020. In a related update, the U.S. Citizenship and Immigration Services (USCIS) cross-posted the ICE extension announcement and emphasized that “E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire.”
Are further extensions likely? Perhaps, with regard to the flexible I-9 practices. However, DHS indicated this will be the final automatic extension of time for employers to respond to notices of inspection (NOIs) relating to I-9 compliance and employer sanctions enforcement served during the month of March 2020. With this last 30-day extension, employers are now granted an automatic extension of 90 days from the NOI effective date to submit a response to DHS.
Cha-Ching! Immigration Enforcement Penalties Increase
On June 17 and 19, 2020, the DHS and the DOJ, respectively, issued final rules implementing the annual adjustment for inflation of certain penalties that govern enforcement of employment-related immigration matters including I-9 paperwork violations, unlawful employment of unauthorized workers and unfair immigration related employment practices based on discrimination. In the table below, we summarize select adjusted penalties enforced by the DHS and DOJ. In addition, we include a summary of the current adjusted penalties for immigration-related violations enforced by the U.S. Department of Labor (DOL), as published in their most recent rule of January 15, 2020.
Department of Homeland Security fines:
The new fine amounts are effective for penalties assessed after June 17, 2020 with respect to violations that occurred after November 2, 2015.
| Violation | Previous Penalty (US $) | Adjusted New Penalty (US $) |
| Knowingly hiring or employing unauthorized aliens – first offence (per individual) | Minimum: 573
Maximum: 4,586 |
Minimum: 583
Maximum: 4,667 |
| Knowingly hiring or employing unauthorized aliens – second offence (per individual) | Minimum: 4,586
Maximum: 11,463 |
Minimum: 4,667
Maximum: 11,665 |
| Knowingly hiring or employing unauthorized aliens – third or subsequent offence (per individual) | Minimum: 6,878
Maximum: 22,927 |
Minimum: 6,999
Maximum: 23,331 |
| Form I-9 paperwork errors (errors or omissions on Form I-9) (per individual) | Minimum: 230
Maximum: 2,292 |
Minimum: 234
Maximum: 2,332 |
The new fine amounts are effective for penalties assessed after June 19, 2020 with respect to violations that occurred after November 2, 2015.
| Violation | Previous Penalty (US $) | Adjusted New Penalty (US $) |
| Unfair immigration related employment practice – first order (per individual discriminated against) | Minimum: 461
Maximum: 3,695 |
Minimum: 481
Maximum: 3,855 |
| Unfair immigration related employment practice – second order (per individual discriminated against) | Minimum: 3,695
Maximum: 9,239 |
Minimum: 3,855
Maximum: 9,639 |
| Unfair immigration related employment practice – subsequent order (per individual discriminated against) | Minimum: 5,543
Maximum: 18,477 |
Minimum: 5,783
Maximum: 19,277 |
| Unfair immigration related employment practice – unfair documentary practices (“document abuse”) (per individual discriminated against) | Minimum: 185
Maximum: 1,848 |
Minimum: 193
Maximum: 1,928 |
| E-Verify violation for failing to notify of final nonconfirmation of employee’s employment eligibility (per violation) | Minimum: 779
Maximum: 1,558 |
Minimum: 813
Maximum: 1,625 |
The new fine amounts were effective for penalties assessed after January 15, 2020 with respect to violations that occurred after November 2, 2015.
| Violation | Previous Penalty (US $) | Adjusted New Penalty (US $) |
| H-1B (specialty occupation) violations pertaining to strike/lockout or displacement of US workers; notifications or misrepresentations on labor condition applications, early-termination or filing fees paid by employee (per violation) | Maximum: 1,895 | Maximum: 1,928 |
| H-1B violations for willful failure pertaining to wages/working conditions notification, labor condition application specificity, recruitment, discrimination or retaliation against an employee (per violation) | Maximum: 7,710 | Maximum: 7,846 |
| H-1B willful violations for displacement of US workers or for willful misrepresentation of material fact on labor condition application (per violation) | Maximum: 53,969 | Maximum: 54,921 |
| H-2B (temporary workers) for violations relating to wages, impermissible deductions, prohibited fees and expenses, and improper refusal to employ or hire US workers (per violation) | Maximum: 12,695 | Maximum: 12,919 |
| H-2A (temporary agricultural workers) for violations relating to a work contract (per violation) | Maximum: 1,735 | Maximum: 1,766 |
| H-2A for violations relating to willful discrimination or failing to cooperate in an investigation | Maximum: 5,839 | Maximum: 5,942 |
| H-2A violations of safety or health resulting in serious injury death | Maximum: 57,813 | Maximum: 58,833 |
| H-2A for willful violations or repeated safety or health violations resulting in serious injury death | Maximum: 115,624 | Maximum: 117,664 |
| H-2A violations for displacing or improperly rejecting US workers | Maximum: 17,344 | Maximum: 17,650 |
Even during these extraordinary times, employers should continue to aggressively monitor their immigration programs for compliance or suffer the consequences of these increased fines. Please stay tuned for additional updates on compliance and other immigration-related matters.
