The Department of Homeland Security (DHS) published on June 28, 2024, increased civil monetary penalties for employer noncompliance with Form I-9 rules. Each year, penalties pursuant to the Immigration and Nationality Act of 1952 (INA) — including those pertaining to the employment eligibility verification process — are adjusted for inflation. These fines mirror the inflation-adjusted fines published by the Department of Justice (DOJ) earlier this year. Because both DHS and DOJ implement the three employment-related penalty sections in the INA, both departments’ implementing regulations reflect the civil penalty amounts.
Pursuant to the INA, all employers must timely and properly complete a Form I-9 for each individual they hire. The form verifies the identity and employment eligibility of each new employee, and employers must retain the forms per applicable rules. Untimely or improper completion of the form can result in penalties, primarily administered by U.S. Immigration and Customs Enforcement (ICE).
The following fine schedule reflects the 2024 inflation adjustment for the penalties that ICE administers:
- I-9 paperwork violations, per violation: $281-$2,789
- The knowing hiring, recruiting, referral or retention of unauthorized noncitizens:
- First offense per unauthorized noncitizen: $698-$5,579
- Second offense per unauthorized noncitizen: $5,579-$13,946
- Third offense per unauthorized noncitizen: $8,369-$27,894
For employers that use the E-Verify system, DHS increased the fine for employers who fail to inform DHS that they continued to employ a worker after receiving a final nonconfirmation of their eligibility to work. The fine for this violation now ranges from $973 to $1,942 per relevant individual employee.
Earlier this year, the DOJ also increased penalties for document abuse and discriminatory practices relating to Form I-9, which are prohibited by the Immigration Reform and Control Act (IRCA).
Unfair immigration-related employment practices can occur when an employer treats candidates and hires differently based on their national origin or immigration status. Examples include firing or refusing to hire protected individuals because of their national origin or citizenship status, retaliation for exercising rights under IRCA and document abuse. Document abuse encompasses a range of behaviors — most frequently an employer requesting specific documents in completing the employment eligibility verification procedure, requesting more verification documents than required for the Form I-9, or refusing to accept documents that are otherwise acceptable under the law.
The following fine schedule reflects the higher penalties, effective Feb. 12, 2024:
- Document abuse: $230 to $2,304 per violation
- Unfair immigration-related employment practices:
- First offense per individual discriminated against: $575 to $4,610
- Second offense per individual discriminated against: $4,610 to $11,524
- Third (or further) offense per individual discriminated against: $6,913 to $23,048
This notice of increased fees can serve as a reminder for employers to review their policies and procedures relating to I-9 compliance.
For guidance on best practices to remain compliant with employment laws, please contact the authors or other members of the McGuireWoods labor and employment or immigration compliance teams.
Special thanks to summer associate Kiran Singh who contributed to the alert. She is not licensed to practice law.