Penalties for Prohibited Practices
DHS may impose penalties if an investigation reveals that you knowingly hired or knowingly continued to employ an unauthorized alien, or failed to comply with the employment eligibility verification requirements with respect to employees hired after November 6, 1986.
DHS will issue a Notice of Intent to Fine (NIF) when it intends to impose penalties. If you receive a NIF, you may request a hearing before an administrative law judge. If your request for a hearing is not received within 30 days, DHS will impose the penalty and issue a Final Order, which cannot be appealed.
Hiring or continuing to employ unauthorized aliens
If DHS determines that you have knowingly hired unauthorized aliens (or are continuing to employ aliens knowing that they are or have become unauthorized to work in the United States), it may order you to cease and desist from such activity and pay a civil money penalty as follows:
- First Offense: Not less than $375 and not more than $3,200 for each unauthorized alien;
- Second offense: Not less than $3,200 and not more than $6,500 for each unauthorized alien; or
- Subsequent Offenses: Not less than $4,300 and not more than $16,000 for each unauthorized alien.
DHS will consider you to have knowingly hired an unauthorized alien if, after November 6, 1986, you use a contract, subcontract or exchange, entered into, renegotiated or extended, to obtain the labor of an alien and know the alien is not authorized to work in the United States. You will be subject to the penalties set forth above.
Failing to comply with Form I-9 requirements
If you fail to properly complete, retain, and/or make available for inspection Forms I-9 as required by law, you may face civil money penalties in an amount of not less than $110 and not more than $1,100 for each violation.
In determining the amount of the penalty, DHS considers:
- The size of the business of the employer being charged;
- The good faith of the employer;
- The seriousness of the violation;
- Whether or not the individual was an unauthorized alien; and
- The history of previous violations of the employer.
Enjoining pattern or practice violations
If the Attorney General has reasonable cause to believe that a person or entity is engaged in a pattern or practice of employment, recruitment or referral in violation of section 274A(a)(1)(A) or (2) of the INA, the Attorney General may bring civil action in the appropriate U.S. District Court requesting relief, including a permanent or temporary injunction, restraining order, or other order against the person or entity, as the Attorney General deems necessary.
Employers found to have required a bond or indemnity from an employee against liability under the employer sanctions laws may be ordered to pay a civil money penalty of $1,100 for each violation and to make restitution, either to the person who was required to pay the indemnity, or, if that person cannot be located, to the U.S. Treasury.
Good faith defense
If you can show that you have, in good faith, complied with Form I-9 requirements, then you have established a “good faith” defense with respect to a charge of knowingly hiring an unauthorized alien, unless the government can show that you had actual knowledge of the unauthorized status of the employee.
A good faith attempt to comply with the paperwork requirements of section 274A(b) of the INA may be adequate notwithstanding a technical or procedural failure to comply, unless you fail to correct a violation within 10 days after notice from DHS.
Engaging in a pattern or practice of knowingly hiring or continuing to employ unauthorized aliens
Persons or entities who are convicted of having engaged in a pattern or practice of knowingly hiring unauthorized aliens (or continuing to employ aliens knowing that they are or have become unauthorized to work in the United States) after November 6, 1986, may face fines of up to $3,000 per employee and/or 6 months imprisonment.
Engaging in fraud or false statements, or otherwise misusing visas, immigration permits and identity documents
Persons who use fraudulent identification or employment authorization documents or documents that were lawfully issued to another person, or who make a false statement or attestation to satisfy the employment eligibility verification requirements, may be fined, or imprisoned for up to 5 years, or both. Other federal criminal statutes may provide higher penalties in certain fraud cases.
If an investigation reveals that you engaged in unfair immigration-related employment practices under the INA, OSC may take action. You will be ordered to stop the prohibited practice and may be ordered to take one or more corrective steps, including:
- Hiring or reinstating, with or without back pay, individuals directly injured by the discrimination;
- Posting notices to employees about their rights and about employers’ obligations; and/or
- Educating all personnel involved in hiring about complying with the employer sanctions and antidiscrimination laws about the requirements of these laws.
The court may award attorney’s fees to prevailing parties, other than the United States, if it determines that the losing parties’ argument is without foundation in law and fact.
Employers who commit citizenship status or national origin discrimination in violation of the anti-discrimination provision of the INA may also be ordered to pay a civil money penalty as follows:
- First Offense: Not less than $375 and not more than $3,200 for each individual discriminated against.
- Second Offense: Not less than $3,200 and not more than $6,500 for each individual discriminated against.
- Subsequent Offenses: Not less than $4,300 and not more than $16,000 for each individual discriminated against.
Employers who commit document abuse in violation of the anti-discrimination provision of the INA may similarly be ordered to pay a civil money penalty of not less