Immigration-Related Administrative Penalties on the Rise, Congressional Report Finds
Author: Marta Moakley, XpertHR Legal Editor
July 27, 2015
The Congressional Research Service (CRS) has issued a report that examines annual changes and trends in immigration-related worksite enforcement, revealing an upward trend in administrative fines and penalties. Employers can expect continued, focused enforcement in this compliance area: the report concludes that federal agency enforcement may be lagging given the estimated size (8.1 million workers) of the unauthorized US labor force.
The CRS, a legislative branch agency within the Library of Congress, provides policy and legal analysis to committees and members of Congress. Its report, Immigration-Related Worksite Enforcement: Performance Measures, seeks to assess Department of Homeland Security (DHS) and Department of Labor (DOL) enforcement efforts by analyzing available data on:
- Final orders for civil monetary penalties;
- Administrative fines;
- Administrative and criminal arrests; and
- Criminal fines, indictments and prosecutions.
Since FY 2006, there has been an increase in the administrative fines imposed, ranging from $0 (FY 2006) to over $16 million (FY 2014). Despite this increase, the report cautions that the penalties remain low relative to the total number of US employers.
Although the CRS report may question the breadth of federal worksite enforcement measures, a single employer may face significant liability for administrative violations. This month, the Office of the Chief Administrative Hearing Officer (OCAHO), which reviews penalties assessed for Form I-9 violations, assessed over $600,000 in civil penalties to a single employer based on 808 violations - most due to paperwork completion failures.
With respect to criminal proceedings, Immigration and Customs Enforcement (ICE) statistics for FY 2013 show that 179 of the 452 individuals arrested were owners, managers, supervisors or HR personnel. However, the CRS report shows that yearly changes in criminal arrests and indictments do not follow a consistent pattern, such as regular increases and decreases.
Indirect Enforcement Activities
Although the CRS report states that the DOL has a limited role in immigration-related worksite enforcement (e.g., conducting Form I-9 inspections), some argue that the DOL may indirectly reduce unauthorized employment through its enforcement of labor laws (e.g., minimum wage and overtime laws). In FY 2014 alone, the DOL collected $79.1 million in back wages for Fair Labor Standards Act overtime and minimum wage violations for over 100,000 workers in the following low-wage industries:
- Day care;
- Janitorial services;
- Guard services;
- Temporary help; and
- Garment manufacturing.