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10.8 Penalties for Prohibited Practices

Unlawful Employment Civil Penalties

DHS considers you to have knowingly hired an unauthorized alien if, after Nov. 6, 1986, you enter into, renegotiate, or extend a contract or subcontract to obtain the labor of an alien you know is not authorized to work in the United States.

DHS or an administrative law judge 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 Nov. 6, 1986.

DHS will issue a Notice of Intent to Fine (NIF) when it intends to impose penalties. If you receive an NIF, you may request a hearing before an administrative law judge. If DHS does not receive your hearing request 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 or an administrative law judge determines that you have knowingly hired unauthorized aliens (or are continuing to employ aliens knowing they are or have become unauthorized to work in the United States), they may order you to cease and desist from such activity and pay a civil money penalty for each offense.

Failing to Comply With Form I-9 Requirements

If you fail to properly complete, retain, and/or make Forms I-9 available for inspection as required by law, you may face civil money penalties for each violation. In determining the amount of the penalty, DHS considers:

  • The size of your business;
  • Your good faith;
  • The seriousness of the violation;
  • Whether the individual was an unauthorized alien; and
  • The history of your previous violations, if any.

Requiring Indemnification

If an administrative law judge finds that you required an employee to pay a bond or indemnity in the event you are held liable for violating employer sanctions laws, the judge may order you to pay a civil money penalty for each bond or indemnity you required, as well as return the bond or indemnity, either to the person who you required to pay it, or, if that person cannot be located, to the U.S. Treasury.

Penalties for Repeated Violations

If the attorney general has reasonable cause to believe you engaged in a pattern or practice of employment, recruitment, or referral that violates INA section 274A (a)(1)(A) or (2) (which can be found at 8 U.S.C. 1324a (a)(1)(A) or (2)), they 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 you or your business. A pattern or practice is engaging in regular, repeated, and intentional activities, but does not include isolated, sporadic, or accidental acts. 

Good Faith Defense

If you can show that you have, in good faith, complied with Form I-9 requirements, then you may 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 that the employee was not authorized to work.

A good faith attempt to comply with the paperwork requirements of INA section 274A(b) may be adequate, notwithstanding a technical or procedural failure to comply, unless you fail to correct a violation within 10 days of DHS notifying you.

Unlawful Employment Criminal Penalties

Engaging in a Pattern or Practice of Knowingly Hiring or Continuing to Employ Unauthorized Aliens

If you or your business are convicted of having engaged in a pattern or practice of knowingly hiring unauthorized aliens (or continuing to employ aliens knowing they are or have become unauthorized to work in the United States) after Nov. 6, 1986, you may face fines and/or six months imprisonment.

Engaging in Fraud or False Statements, or Otherwise Misusing Visas, Immigration Permits, and Identity Documents

You may be fined and/or imprisoned for up to five years if you:

  • Make a false statement or attestation to satisfy the employment eligibility verification requirements;  
  • Use fraudulent identification or employment authorization documents; or
  • Use documents that were lawfully issued to another person.

Other federal criminal statutes may provide higher penalties in certain fraud cases.

Civil Document Fraud

If a DHS investigation reveals that you have knowingly committed or participated in acts relating to document fraud, DHS may take action. DHS will issue an NIF when it intends to impose penalties. If you receive an NIF, you 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.

If DHS or an administrative law judge finds that you have violated INA section 274C, they may order you to cease and desist from such behavior and to pay a civil money penalty.