Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The U.S. Department of Labor (DOL) published its new immigration-related fines/penalties, effective January 15, 2024. Immigration-related violations before the DOL involve these visas: H-1B, H-2A, and H-2B. These increases are pursuant to the Federal Civil Penalties Inflation Adjustment Act of 2015. Since that time, penalties have been adjusted yearly based on the rate of inflation.
Below are the offenses, including regulation citations, with the old and new penalties:
|
Offense |
Regulation Citation |
Old Fine |
New Fine |
|
H-1B involving non-willful strike/lockout, displacement of U.S. workers, misrepresentation of material fact on LCA, recruitment of U.S. workers, payment of filing fee by employee, violation of PAF |
20 CFR 655.810(b)(1) |
$2,232 |
$2,304 |
|
H-1B retaliation |
20 CFR 655.801(b) |
$9,086 |
$9,380 |
|
H-1B willful violation or discrimination |
20 CFR 655.810(b)(2) |
$9,086 |
$9,380 |
|
H-1B willful violation that resulted in the displacement of a U.S. worker |
20 CFR 655.810(b)(3) |
$63,600 |
$65,661 |
|
H-2A failure to pay worker correctly or honor terms and conditions of employment |
29 CFR 501.19 |
$2,045 |
$2,111 |
|
H-2A willful violation or H-2A discrimination |
29 CFR 501.19(c)(1) |
$6,881 |
$7,104 |
|
H-2A safety or health violation resulting in serious injury or death |
29 CFR 501.19(c)(2) |
$68,129 |
$70,337 |
|
H-2A willful or repeated safety or health violation resulting in serious injury or death |
29 CFR 501.19(c)(3) |
$136,258 |
$140,674 |
|
H-2A failing to cooperate in an investigation |
29 CFR 501.19(d) |
$6,881 |
$7,104 |
|
H-2A displacing a U.S. worker |
29 CFR 501.19(e) |
$20,439 |
$21,101 |
|
H-2A improperly rejecting a U.S. worker |
29 CFR 501.19(f) |
$20,439 |
$21,101 |
|
H-2B failure to correctly pay employees |
29 CFR 503.23(b) |
$14,960 |
$15,445 |
|
H-2B layoff or refusal to employ |
29 CFR 503.23(c) |
$14,960 |
$15,445 |
|
H-2B willful misrepresentation of material fact or willful failure to meet terms and conditions |
29 CFR 503.23(d) |
$14,960 |
$15,445 |
Generally, a violation is willful in the H-2B context when the employer, attorney, or agent knows its statement to be false or that its conduct is in violation of the immigration act or shows reckless disregard for the truthfulness of its representation or conduct. In determining whether a violation is a significant deviation from the terms and conditions of the H-2B registration, Application for Prevailing Wage Determination, Application for Temporary Employment certification or H-2B petition, the administrator of the Wage and Hour Division (WHD) may consider the following inexhaustive criteria:
- Previous history of violation(s) under the H–2B program;
- The number of H-2B workers, workers in corresponding employment, or U.S. workers who were and/or are affected by the violation(s);
- The gravity of the violation(s);
- The extent to which the violator achieved a financial gain due to the violation(s), or the potential financial loss or potential injury to the worker(s); and
- Whether U.S. workers have been harmed by the violation.
The revised civil monetary penalties will be applicable to violations occurring after November 2, 2015, for which penalties were assessed after January 15, 2024.
As the penalties continue to rise, it behooves all employers employing workers on H-1B, H-2A, or H-2B visas to pay careful attention to the proper administration of the visas. Employers with questions should contact their immigration attorney.
