What happened?

The Department of Homeland Security (DHS) issued a final rule in which it increased the fines against employers that fail to comply with Form I-9 rules (Employment Eligibility Verification).

What are the details?


Key Bites for Employers:

• DHS adjusts for inflation its civil monetary penalties for 2024.

• Employers should expect an increase in government I-9 inspections. 

• The following increased fines will be imposed:
  • I-9 paperwork violations: Increase from $281 to $2,789 per Form I-9 violation.
  • Knowingly employing unauthorized employees (first offense): Increase from $698 to $5,579 per violation
  • Knowingly employing unauthorized employees (second offense): Increase from $5,579 to $13,946 per violation
  • Knowingly employing unauthorized employees (third or more offense): Increase from $8,369 to $27,894
  • E-Verify Employers – Failure to Inform DHS of Continuing Employment Following Final Nonconfirmation: $973 to $1,942 per relevant individual employee

• In February 2024, the Department of Homeland Security (DHS) increased the penalties for document abuse and discriminatory practices related to I-9 issues.
  • Document abuse can occur when an employer requests specific documents, or more or different documents after the employee has already presented qualifying I-9 documents.
  • The I-9 rules stipulate that the employer must allow the employee to choose which document or documents to present from the “I-9 List of Acceptable Documents.”
  • The employer is then required to review the presented documents to confirm whether they meet the verification requirements.
  • Unfair immigration-related employment practices may arise if an employer treats job applicants or new hires differently based on their immigration status during the implementation of I-9 procedures or when addressing I-9 issues.

Business Considerations

• Employers should make I-9 compliance an important part of normal business operations: the I-9 function is a substantive task and should not be treated as a simple clerical task.
• Employers should train their employees before allowing them to manage any I-9 compliance duties. An employer’s I-9 compliance program should focus on the time of hire, re-verification (if applicable), and periodic internal I-9 audits. Failure to do so could potentially lead to violations.
• Employers should proactively audit their current I-9 program to ensure compliance, which will provide insight into the strengths (or weaknesses) of their current I-9 program. The I-9 compliance efforts should commence well before ICE arrives with the Notice of Inspection. 
• If employers are not already enrolled, consider to be enrolled in E-Verify.
• Employers should ensure that they are using the latest version of Form I-9.

Source References

• DHS Final Rule: Civil Monetary Penalty Adjustments for Inflation
• DHS Final Rule: Civil Monetary Penalties Inflation Adjustments for 2024 (Penalties for document abuse)

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