It’s funny how government works. And I’m not talking “funny ha-ha.” Or, maybe I am, because some of the decisions made by government officials seem comical compared to others.
As I was watching my TweetDeck feed earlier this week, I saw a Tweet go by with a link to an article about the increased penalties for Form I-9 and other immigration-related violations that began August 1. (Big thanks to our Twitter friends over at Greenshades Software for sharing the article.)
The horticulture industry needs to stay mindful of changes in penalties when it comes to immigration.
I’m always keeping an eye out for news about immigration, especially since it causes a big impact for two of the industries our customers come from: horticulture and construction. The last time I wrote about Form I-9, which is used for verifying the identity and employment authorization of people hired for jobs in the United States, the government announced it was proposing changes to the digital version of the form.
This was a great idea because government officials were trying to make the digital forms less convoluted and less complicated in an effort to reduce clerical errors. Representatives from the horticulture industry said since government auditors had been pursuing these violations more frequently the last few years, this was a welcomed change.
Now, after seeing the article about the increased fines, I’m wondering if someone in one of the departments that oversee the I-9 form (the U.S. Department of Homeland Security, Department of Labor and Department of Justice) had the forethought of making sure the form was as fair as possible before the penalties became more stiff.
Immigration penalties by the numbers
The increase in fines were a part of the Civil Monetary Penalties Inflation Adjustment provision in the Bipartisan Budget Act of 2015, which passed into law on November 2. (If you really want to be specific, it’s under Title VII, Section 701 of H.R. 1314.)
According to the provision’s documentation, considerations for adjusting civil penalties for inflation are based off of the Consumer Price Index set out by the Bureau of Labor Statistics, as well as other factors such as the length of time it’s been since an individual penalty was last adjusted. For example, a penalty that was adjusted 20 years ago will have less of an increase than one that was last adjusted 30 years ago.
The penalties for Form I-9 errors increased by more than 200 percent as of Aug. 1.
The ironic part is that the penalty for clerical errors on Form I-9 saw one of the largest percentage increases after the legislation was enacted of all the civil penalties covered under this law. Under the old system, the penalty per violation would have gone from $1,000 to $1,100. Now, with the law that went into effect August 1, the penalty is now $2,156 per violation — a whopping 115.6 percent increase.
In the grand scheme of things, $2,156 is not a lot of money for a large business. It’s certainly not the $9.46 million adjusted penalty for continual violations of the Financial Institutions Reform, Recovery and Enforcement Act that also fell under this law.
But at a large-scale greenhouse operation, you may have hundreds of seasonal employees who may need to file Form I-9. These are all foreign workers who are here legally and have their legal documents in order.
Let’s say 200 of those employees went to the same person to assist them filling out their I-9 form, which is perfectly acceptable under the law. But because of a poorly written question, the assistant misunderstood how to fill out an entry on the digital form. From an honest mistake, you’re now looking at a $431,200 fine for all 200 violations.
I’d like to think that someone in government actually felt bad about how many mistakes were being made from a poorly constructed form, especially after the legislation was passed to update the penalties. It only took a couple of months between this bill being signed into law for there to be a public comment period for the proposed changes to Form I-9.
Compliance is key to staying ahead of penalties
There were a few other immigration-related penalties that were also updated through this legislation, such as the penalties for employing immigrants who are here illegally. Those penalties are substantially higher now. Repeat violators will now have to pay a maximum of $21,563 per violation instead of $10,000.
Believe it or not, businesses can employ illegal workers by not having a system in place to keep track of an employee’s documentation. It’s possible for someone to be hired legitimately only to have some or all of their documentation expire while they’re employed. If there isn’t a system in place to catch these lapses, a company could be in serious financial trouble if they’re audited.
The best way for employers to stay ahead of these problems is to stay in compliance in the first place. And, just as I said back in January, having a system in place like Sage HRMS that automate the human resources process is a major step in the right direction. For example, it can help a company keep track of their employees’ expiring or missing documentation.
Now I’m sure there are some of you out there who are looking at the increase in the penalties and are upset at what looks like a government money grab. Remember, these fines hadn’t been updated in decades. They were due for a bit of an increase since the penalties are meant to be deterrents in the first place. And many of these immigration penalties can be avoided by just having a solid system in place to stay in compliance.
Of course, the government didn’t see it the same way when it came to a cost-of-living adjustment for Social Security. But that takes us back to the comedy of errors of the U.S. legislature, leaving us not knowing whether to laugh or cry.