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Penalties for Prohibited I-9 and Employment Eligibility Verification (EEV) Practices

Penalties for Unlawful Employment

Civil Penalties
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:

Civil Penalties for Unlawful Employment Practices
1st Offense 2nd Offense Subsequent Offenses
Not less than $375 and not more than $3,200 for each unauthorized alien Not less than $3,200 and not more than $6,500 for each unauthorized alien Not less than $4,300 and not more than $11,000 for each unauthorized alien

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:
1. The size of the business of the employer being charged;
2. The good faith of the employer;
3. The seriousness of the violation;
4. Whether or not the individual was an unauthorized alien; and
5. The history of previous violations of the employer.

Enjoining Pattern or Practice Violations
If DHS/ICE or the Department of Justice 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 which is unlawful employment of aliens, the government 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 deemed necessary.

Requiring Indemnification

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.


Criminal Penalties
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.

Criminal Penalties for Unlawful Employment Practices
Knowingly Hiring—Continued Employment False Statements, Misusing Visas & Identity Documents
Fines of up to $3,000 per employee and/or 6 months imprisonment Fined, or imprisoned for up to 5 years, or both. AND other federal criminal statutes may provide higher penalties in certain frauds

Unlawful Anti-Discrimination Provisions (UIREP)—Civil Penalties
If an investigation reveals that you engaged in unfair immigration-related employment practices (UIREP) 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:

1. Hiring or reinstating, with or without back pay, individuals directly injured by the discrimination;
2. Posting notices to employees about their rights and about employers’ obligations; and/or
3. 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:

Civil Penalties: UIREP-Unfair Immigration Related Employment Practices
1st Offense 2nd Offense Subsequent Offenses
Not less than $375 and not more than $3,200 for each individual discriminated against Not less than $3,200 and not more than $6,500 for each individual discriminated
against
Not less than $4,300 and not more than $16,000 for each individual discriminated
against


Document Abuse UIREP—Civil Penalties

Employers who commit in violation of the anti-discrimination provision of the INA may similarly be ordered to pay a civil money penalty of not less than $110 and not more than $1,100 for each individual discriminated against.

Title VII Corrective Actions
National origin discrimination under Title VII
If you are found to have committed national origin discrimination under Title VII, you may be ordered to stop the prohibited practice and to take one or more corrective steps, including:

1. Hiring, reinstating or promoting with back pay and retroactive seniority;
2. Posting notices to employees about their rights and about the employer’s obligations; and/or
3. Removing incorrect information, such as a false warning, from an employee’s personnel file.

Compensatory damages for intentional discrimination under Title VII. Under Title VII, compensatory damages may also be available where intentional discrimination is found. Damages may be available to compensate for actual monetary losses, for future monetary losses, and for mental anguish and inconvenience. Punitive damages may be available if you acted with malice or reckless indifference. You may also be required to pay attorneys’ fees, expert witness fees, and court costs.


Civil Document Fraud

If a DHS investigation reveals that an individual has knowingly committed or participated in acts relating to document fraud, DHS may take action. DHS will issue a Notice of Intent to Fine (NIF) when it intends to impose penalties. Persons who receive a NIF may request a
hearing before an administrative law judge. If DHS does not receive a request for a hearing within 30 days, it will impose the penalty and issue a Final Order, which is final and cannot be appealed.

Individuals found by DHS or an administrative law judge to have violated section 274C of the INA may be ordered to cease and desist from such behavior and to pay a civil money penalty as follows:

Civil Penalties for Document Fraud
First offense Subsequent offenses
Not less than $375 and not more than $3,200 for each fraudulent document that is the subject of the violation Not less than $3,200 and not
more than $6,500 for each fraudulent document
that is the subject of the violation

Addtional Criminal Charges

Who Can be Charged
Individuals
Who can be charged for criminal I-9 and employment eligibility violationsPlant Managers and Supervisors
Who can be charged for criminal I-9 and employment eligibility violationsHuman Resources Personnel
Who can be charged for criminal I-9 and employment eligibility violationsUnion Stewards
Who can be charged for criminal I-9 and employment eligibility violationsIntermediate and Senior ---Corporate Officials—E.G., Owners and Executives
Who can be charged for criminal I-9 and employment eligibility violationsAccountants
Who can be charged for criminal I-9 and employment eligibility violationsThe Employing Entity

 

IRCA Misdemeanor Violations
Actual or Constructive Knowledge
Hire (direct or through contract), Referral for a fee, Continuing employment;
Maximum Penalties: up to $3,000 per employee, and/or 6 months

 

Felony Hiring Violation
Actual knowledge that illegal’s smuggled into U.S. in violation of law of at least 10 individuals in a 12-month period
Maximum Imprisonment of 5 years
Maximum Fines greater of $250,000 or 2 times financial gain

 

Felony Harboring Violation
Actual knowledge that that a person has come to, entered, or remains in the U.S. in violation of law
Harboring, concealing, or shielding from detection said person---thereby ”substantially facilitating” the alien remaining in the U.S. illegally
To evade or avoid detection by law enforcement
Maximum Imprisonment of 5 years; but 10 years if commercial advantage or financial gain


Potential Felony Harboring Charges: Employment “Plus”
Housing and transporting workers with actual or constructive knowledge of illegal aliens
Warning workers of ICE raid activity
Counseling workers to use fake documents
Paying illegal workers off the books
Transferring illegal workers between job sites to avid detection
Assisting illegal workers to complete I-9 forms with fake documents

 

Conspiracy to Harbor
Agreement with at least one other person
Harbor at least one unauthorized alien
One act of furthering goal of conspiracy
Maximum Imprisonment of 10 years per violation
Maximum Fines: the greater of $250,000 or twice the financial gain

.

Felony Money Laundering
Proof of financial transaction conducted in the proceeds of “specified unlawful activity"
Harboring
Attempting to harbor
Maximum Imprisonment of 10 years per violation

 

Aiding and Abetting Aggravated Identity Theft
Proof of knowingly transferring, processing, or using a means of personal identification of another without lawful authority, during the commission of specified felonies, including false impersonation of citizenship, fraud, and false statements
Criminal Asset Forfeiture for Felony Convictions
Property Subject to Seizure Upon Conviction: Vehicles, Plant and equipment, Bank accounts


Debarrment from Participation in Federal Procurement Programs
Automatic inclusion on web-based GSA Excluded Parties List System (EPLS) upon judicial notice of felony conviction—forcing contracting agency t demonstrate that there is a compelling reason top retain excluded contractor
Assumes convicted entity poses a substantial risk of non-performance of contract obligations
Reinstatement of contractor eligibility to compete for future contracts and task orders involves protracted negotiations and requires mea culpa, detailed corporate compliance plan, and regular self-audits and reporting

 

   
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