Fines Against Employers Increase
for Immigration Violations
C. Matthew Schulz
650.856.5528
matthew.schulz@bakernet.com
Fines against employers for immigration violations are set to increase effective March 28, 2008.
The new minimum fine for employers who employ a foreign national with knowledge that the individual is unauthorized for such employment will be $375. The maximum penalty for the same office becomes $3,200. On the average, the increases are 25%. The biggest increase is the maximum fine for multiple violations to $16,000.
This is the first increase in the level of fines since 1999 and represents yet another indication of the government's interest in punishing employers as a cornerstone of the administration's immigration policy.
The government is using criminal laws to punish employers. The Attorney General used the press briefing today in his published remarks to his Department is "working with DHS to increase criminal prosecutions against the most egregious employer offenders." Until two years ago, government enforcement in this area was infrequent and generally limited to civil penalties. Since then, there has been a dramatic increase in the use of criminal penalties against employers. The Attorney General's remarks show we can expect this to continue.
If that did not get your attention, the Homeland Security Secretary's published remarks will. He cited "some specific real-life examples of what we have done in the last year with respect to employer and employee work site enforcement actions." The full text of his remarks are linked to this article, but here is the executive summary referring to different cases he cited:
- Two indictments charging a company and its human resources director with harboring illegal aliens and inducing or encouraging them to stay in the U.S. illegally.
- A federal jury convicted a former human resources director of harboring an illegal alien and inducing an illegal alien to enter or reside in the US. Under federal statues, this person faces up to 10 years in prison without parole.
- A textile product company was raided, and the owner and three other managers were arrested and charged with conspiring to encourage or induce illegal aliens to reside in the US and to hire illegal aliens. Another person was charged in a separate complaint with the knowing transfer of fraudulent identity documents.
In DHS Secretary Chertoff's own words: "These are the kinds of cases that have high impact on those who would hire and employ undocumented and illegal aliens often facilitated through identity theft and document fraud."
He also stated that the government is "very close" to publishing the long-awaited no-match regulation, the original version of which and resulting court actions have been discussed in prior Client Alerts.
Secretary Chertoff also encouraged employers to sign up for the currently voluntary E-Verify program, also discussed in prior Client Alerts. How much longer E-Verify remains voluntary - at least for everyone - is open to question. He announced that DHIS intends to issue a proposed rule requiring federal contractors to use E-Verify.
A Quick Link to the DOJ press release and the published remarks by the Attorney General and Secretary of the Department of Homeland Security are provided in the left column.
More than ever, this is the time for employers in the US to get their house in order. The government is enforcing the law more aggressively than ever. Their investigations are most often complaint driven. Workers detrimentally impacted by RIFs or laidoff are prime candidates to file complaints. With increases in RIFs and terminations, more employers are exposed to this risk.
What to do next? Here is how to get started: Review company employment policies and practices. Obtain legal support to make sure those policies comply with the law. Ensure that relevant personnel understand and comply with those policies. Have your law firm or other qualified third parties conduct trainings and conduct the independent audits called for the Immigration and Custom Enforcement agency.