I. Introduction

Immigration law affects employers in numerous ways. Under the employer sanction provisions of the Immigration Reform and Control Act of 1986 (IRCA), employers may incur both civil and criminal liabilities for certain violations. This article provides an overview of the various responsibilities and penalties that employers should be aware of when hiring personnel.

II. Employment of Unauthorized Aliens

A. General

The primary way in which an employer may violate immigration laws is to knowingly hire an unauthorized alien. IRCA imposes three main prohibitions on U.S. employers. First, employers may not knowingly hire, recruit or refer an alien for a fee for employment in the U.S. who is unauthorized for such employment. Second, if the employer knows that the alien is or has become unauthorized for employment, they may not continue to employ the alien. Third, an employer may not use a contract, subcontract, or exchange to obtain the labor of an alien in the U.S. if they know that the alien is unauthorized for employment.

Persons that are authorized to work in the U.S. can be divided into four categories:
(1) Aliens whose statuses automatically give them employment authorization to work for any employer in any position;
(2) Aliens whose statuses allows them to apply for general employment authorization;
(3) Aliens whose statuses allow them to apply for employment authorization subject to any restrictions in regulations or cited on the employment authorization document; and
(4) Aliens whose statuses automatically authorize them for employment in a specific position and for a specific employment.

Knowledge of an employee's unauthorized status includes "constructive knowledge," which is knowledge that can be inferred by noticing certain facts and circumstances that would lead a reasonable employer to realize that the foreign national is an unauthorized alien.

An employer who improperly completes, or who fails to complete form I-9 may be considered to have constructive knowledge of the unauthorized status of an employee. Good faith compliance with form I-9 requirements may serve as a defense to the hiring, recruiting or referring an alien for a fee and the employing of an alien with knowledge that the alien is unauthorized to work in the United States.

B. Penalties: Employers are subject to both civil fines and criminal penalties for violation of employer sanction provisions.

1. Civil Fines. Employers who knowingly hire or recruit unauthorized aliens or refer unauthorized aliens for a fee, are subject to the following fines:
(i) First Offense: From $275 to $2,200 per unauthorized alien ($250 to $2,000 per unauthorized alien for violations occurring prior to March 15, 1999);
(ii) Second Offense: From $2,200 to $5,500 per unauthorized alien ($2,000 to $5,000 for offenses occurring prior to March 15, 1999); and
(iii) Subsequent Offenses: From $3,300 to $11,000 per unauthorized alien ($3,000 to $10,000 for offenses prior to March 15, 1999).
An "offense" is the number of times an employer has been charged with violations.

2. Criminal Penalties. Employers who engage in a pattern or practice of hiring or contracting for the labor of aliens whom they know are unauthorized may be subject to criminal penalties, which include a fine of up to $3,000 for each unauthorized alien, a prison term of up to six months, or both.

In addition, it is a criminal offense to knowingly hire at least ten employees during a twelve-month period, with actual knowledge that they are unauthorized to work.

III. Employment Eligibility and I-9 Process

Employers are responsible for completing and retaining form I-9 for each employee hired after November 6, 1986, whether they are U.S. citizens or foreign nationals. The purpose of completing this form is to verify that each employee hired is authorized to work in the U.S.

A. Employees for whom I-9 is not Required.

Some employees, however, are not required to have an I-9 form. They can be divided into four groups:
(1) Employees hired before November 6, 1986, and continuously employed by the same employer;
(2) Employees who continue employment after a temporary interruption;
(3) Independent contractors and contract employees; and
(4) Employees who are rehired after three years of initial I-9 compliance (In this case, the employer must review the initial I-9, make sure it relates to the same individual being rehired and the individual's employment authorization has not expired.).

B. Completing the Form.

1.Responsibilities of the Employer

It is the employer's responsibility to ensure that Section 1 of the form is completed by the employee upon the date of hire, which is the employee's first day of work. Employers may not ask for specific documents from employees to verify that the information provided in Section 1 is correct. However, they are responsible for ensuring that all required information is provided by the employee.

In addition, the employer must complete and sign Section 2 of the form within three business days of the date of hire. In doing so, the employer must examine documentation provided by the employee to establish both identity and eligibility to work in the U.S. There are three groups of documents that may be used by an employee for this purpose and they are all listed on the back of form I-9. It is in the employee's discretion which documents to produce. The employer may not require specific documents.

Employers may also accept receipts as evidence that the employee filed an application for certain documents. The employer must then verify receipt of the documents by the employee. This rule does not apply if the period of employment is less than three days. Acceptable documents include: (1) Evidence that employee filed an application for the replacement of a List B or List C document; (2) I-94 card with temporary I-551 stamp; and (3) I-94 card with refugee admission stamp.

2. Responsibilities of the Employee.

The employee is responsible for completing Section 1 of the form. In particular, the employee must attest to his or her status as a U.S. citizen, lawful permanent resident with a green card, or alien authorized to work in the U.S. until a specified date. Employees must sign and date Section 1 upon completion.

C. Updates and Reverification. Upon the expiration of an employee's employment authorization (listed in Section 1) or evidence of employment authorization (recorded in Section 2), the employer must re-verify employment eligibility. This rule does not apply to U.S. passports or green cards. However, if the employee provided temporary evidence of permanent resident status in the form of an unexpired foreign passport containing a temporary I-551 stamp, the employer must re-verify eligibility. It is helpful for employers to set up a system that will automatically remind them when an employment authorization document will expire.

D. Failure to Comply with I-9 Verification. If an employer does not complete Section 2 of the I-9 or fails to confirm that each employee has completed Section 1 of the form, fines ranging from $110 to $1,100 per offense may be imposed. Fines are calculated per individual and not per error on the I-9 form.

E. Record Retention. Employers are not required to file the I-9 form with the government. However, employers must retain the form for a minimum of three years after the date of hire or for one year after termination of employment, whichever is later.

IV. Document Abuse

Employers may not specify which documents employees need to produce when verifying identity and employment eligibility. Similarly, they may not refuse certain documents presented to them by the employee. Employers found to have violated this provision may be required to cease and desist, to comply with paperwork requirements for up to three years, to retain the name and address of each individual who applies for employment for up to three years, to pay back pay to individuals affected and to hire previously rejected individuals. Civil penalties may also be imposed. These include a fine between $110 and $1,100 (between $100 and $1,000 for each violation occurring prior to March 15, 1999).

V. Antidiscrimination

Employers with more than three employees may not discriminate against any individual with respect to the individual's hiring, recruitment or referral for a fee based on national origin, or citizenship status ("protected individual".) A protected individual is a citizen or national of the United States, a permanent resident, temporary resident, refugee or asylee. Aliens who have a temporary working visa or aliens lacking employment authorization are not considered protected individuals.

VI. Conclusion

Employers need to be aware of the employer sanctions, antidiscrimination provisions, civil fines and criminal penalties under immigration laws. It is important to understand what is expected of employers under these laws to avoid possible violations and to be prepared in the event of an audit.

Teressa Accurso Dickman
Law Offices of Teressa Accurso Dickman, P.A.
www.ImmigratingToAmerica.com