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US EMPLOYERS LIABILITY FOR HIRING AN ILLEGAL ALIEN [2013.04.07]
US EMPLOYERS LIABILITY FOR HIRING AN ILLEGAL ALIEN


Statutes and Definitions

Two key legal documents cover the employment regulation.  The control of employment of aliens is described in 8 CFR Part 274a.  Bringing in and Harboring Certain Aliens is covered in detail in the Immigration and Nationality Act (INA) Act 274.

Section 274(a)(1)(B) of the INA makes it illegal for an employer to hire any person, citizen or alien without first verifying the persons authorization to work in the United States.  All employees must be authorized to work either automatically (U.S. Citizen or Legal Permanent Resident) or by U.S. Citizenship and Immigration Services (USCIS).  If employment authorization expires, then a person is no longer authorized to work.

8 CFR 274a.1(c) defines hiring as actual commencement of employment for wages or other remuneration, and includes the use of a contract, subcontract or exchange to obtain the labor of a person knowing that person is not authorized to work.

An employee is an individual who provides services or labor for an employer for wages or other remuneration, and does not include casual hires or independent contractors, 8 CFR 274a.1(f), and does not include volunteers who do work without any expectation of compensation . . . .  66 No. 41 Interpreter Releases, 1173-74, 1186-89 (Oct. 23, 1989).

Verification System

All Employers must examine documents and attest under penalty of perjury (on a form designated or established by the Attorney General by regulation) that it has verified that the individual is not an unauthorized alien.  The employer may not accept the document that does not reasonably appear on its face to be genuine.  Employees who left employment and are rehired must be re-verified, if rehired more than three years after the original hire date.  Casual hires, Employees of independent contractors, B-1 domestic servants, B-1 trainees on short term training program and employees hired before Nov. 7, 1986 are not subject to Verification.

Employer must review a prospective employees documents and attest under penalty of perjury on Form I-9 that the employee produced documents establishing both employment authorization and identity.  There are three groups of verification documents outlined in INA 274a:

A.    Documents establishing both employment authorization and identity (i.e., U.S. passport; Green Card; a foreign passport with I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa; and Employment Authorization Document (EAD) with photo (I-776));

B.     Documents evidencing employment authorization (i.e., Social Security card; Certification of Birth Abroad issued by DOS on FS-545; A Native American Tribal Document; EAD issued by DHS; and other documentation evidencing authorization of employment in the U.S.);

C.     Documents establishing identity of individual (i.e., Drivers license; School ID card with a photograph; ID card issued by federal, state or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address; U.S. Military card or draft record; etc.).

An employee should be allowed to produce either a single List A document (establishing both identity and employment eligibility) or a combination of two documents, one from List B (establishing identity) and one from List C (establishing employment eligibility).  Employers cannot require or specify which documents they will accept from an employee and should not refuse to hire an individual because of a document's future expiration date.  8 CFR 274a.2(b)(1)(v).  If an employee refuses or fails to produce such documentation, an employer can terminate such employee within three business days of the date the employment begins

Discrimination Liability

To avoid a claim in discrimination, the identification practices shall be applied by the employer uniformly.  In order to prevail, claimants must demonstrate that the employer had a discriminatory intent (INA 274B(a)).

Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is a U.S. Department of Justice branch responsible for enforcing the anti-discrimination provision of the INA, 8 U.S.C. 1324b.  The federal law prohibits national origin discrimination, citizenship status discrimination, unfair documentary practices (document abuse) during the employment eligibility verification (Form 1-9) process, and retaliation.

I-9 Form and e-Verification

The U.S. employer may face civil and criminal penalties for hiring an illegal immigrant.  The I-9 Form has been in use since the 1986 reform of immigration laws and introduction of the Immigration Reform and Control Act (IRCA).  The I-9 Form is designed to shield employers from liabilities for hiring illegal aliens.  This form could be downloaded along with M-274 instructions from the USCIS website (http://www.uscis.gov/files/form/m-274.pdf).  Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States.  The form should be completed by employer within 3 business days of the employees hire.  The form should be completed for both citizens and noncitizens.  On the form, an employee must attest to his or her employment authorization.  Instructions on the last page of the form provide for a list of allowable documents that should be presented by employee to prove identity and work authorization in the United States.  The employer must examine the employment eligibility and identity documents an employee presents to determine whether the documents reasonably appear to be genuine and to relate to the employee and record the document information on the form I-9.  Employers must retain Form I-9 for a designated period and make it available for inspection by authorized government officers.  It is quite common for employers to make mistakes in completing the seemingly simple Form I-9, setting themselves up for Immigration and Customs Enforcement (ICE) investigation.  It is recommended that larger employers develop strict policies, including self-auditing on I-9 compliance.

The U.S. Government created an E-Verify program in order to help employers with the background information on new hires.  The employer may register at www.uscis.gov/E-Verify and to instantly compare the information entered from employees Form I-9 against 455 million Social Security Administration records and 80 million U.S. Department of Homeland Security records.  The E-Verify system includes photo identification.

Employers are required by law to maintain for inspection original Forms I-9 for all current employees. In the case of former employees, retention of Forms I-9 are required for a period of at least three years from the date of hire or for one year after the employee is no longer employed, whichever is longer.  ICE may conduct the administrative inspection or an audit, despite the best efforts by employers to follow IRCA provisions.  The audit is initiated by the service of a Notice of Inspection (NOI) upon an employer compelling the production of Forms I-9.  ICE will typically allow three business days to present the Forms I-9.  Often, ICE will request the employer to provide supporting documentation, which may include a copy of the payroll, list of current employees, Articles of Incorporation, and business licenses.

ICE agents or auditors then conduct an inspection of the Forms I-9 for compliance.  When technical or procedural violations are found, pursuant to INA 274A(b)(6)(B) (8U.S.C. 1324a(b)(6)(B)), an employer is given ten business days to make corrections (the Bono Amendment, 8 USC 1324a(b)(6)).  An employer may receive a monetary fine for all substantive and uncorrected technical violations. 

Penalties


Employers determined to have knowingly hired or continued to employ unauthorized workers under INA 274A(a)(1)(a) or (a)(2) (8 U.S.C. 1324a(a)(1)(a) or (a)(2)) will be required to cease the unlawful activity, may be fined, and in certain situations may be criminally prosecuted.  INA 274A and 8 CFR Part 274a outline the following civil and criminal penalties for violation:

1.      Criminal penalties.  Any person or entity which engages in a pattern or practice of violations of subsection (a)(1)(A) or (a)(2) of the Act shall be fined not more than $3,000 for each unauthorized alien, imprisoned for not more than six months for the entire pattern or practice, or both, notwithstanding the provisions of any other Federal law relating to fine levels.

2.      Civil penalties.  A person or entity may face civil penalties for a violation of section 274A of the Act.  Civil penalties may be imposed by the Service or an administrative law judge for violations under section 274A of the Act.  In determining the level of the penalties that will be imposed, a finding of more than one violation in the course of a single proceeding or determination will be counted as a single offense. However, a single offense will include penalties for each unauthorized alien who is determined to have been knowingly hired or recruited or referred for a fee.

Additionally, ICE or administrative law judge may impose sanctions to a respondent found to have knowingly hired, or to have knowingly recruited or referred for a fee, an unauthorized alien for employment in the United States or to have knowingly continued to employee an unauthorized alien in the United States.  Such sanctions are outlined in 8 CFR 274a.10(b)(1)(ii)(A) as follows:

(i) To cease and desist from such behavior;

(ii) To pay a civil fine according to the following schedule;

(A) First offense--not less than $275 and not more than $2,200 for each unauthorized alien with respect to whom the offense occurred before March 27, 2008, and not less than $375 and not exceeding $3,200, for each unauthorized alien with respect to whom the offense occurred occurring on or after March 27, 2008;

(B) Second offense--not less than $2,200 and not more than $5,500 for each unauthorized alien with respect to whom the second offense occurred before March 27, 2008, and not less than $3,200 and not more than $6,500, for each unauthorized alien with respect to whom the second offense occurred on or after March 27, 2008;

(C) More than two offenses--not less than $3,300 and not more than $11,000 for each unauthorized alien with respect to whom the third or subsequent offense occurred before March 27, 2008 and not less than $4,300 and not exceeding $16,000, for each unauthorized alien with respect to whom the third or subsequent offense occurred on or after March 27, 2008.

ICE may impose criminal penalties in certain situations.  Two typical charges brought by ICE are harboring and money laundering.  Under 8 USC 1324(a)(1)(B)(ii), harboring an illegal alien is a felony violation penalized with a fine and imprisonment for up to 5 years for each alien harbored.  If the violation is committed for the purpose of commercial advantage or private financial gain, the penalty is increased to up to 10 years of imprisonment (1324(a)(1)(B)(i)).  1324(a)(1)(A)(iii)) defines harboring as: any person who knowingly or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation.

18 USC 1956 provides the definition of Laundering of monetary instruments, also known as money laundering, as a financial transaction with property that represents the proceeds of specified unlawful activity with the intent to promote the carrying on of specified unlawful activity.  Global trade is frequently used by criminal organizations to move value around the world. Trade-based money laundering is an alternative payment system that allows illegal organizations the opportunity to earn, move and store proceeds disguised as legitimate trade.  The government has been aggressive in their pursuit of money laundering charges in worksite enforcement cases under a theory that employers who knowingly employ unauthorized immigrants are often using the money gained from such illegal employment to further a criminal enterprise that continues to hire illegally such employees.  The maximum penalty for felony money laundering can be either 10 years or 20 years per violation.

Preventative Measures

In determining penalty amounts, ICE considers five factors: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations.

An employer can demonstrate good faith compliance by showing to the government the following type of evidence:

1.      Documentation demonstrating the training human resource professionals receive in completing I-9 documents and verification of attendance by those employees;

2.      Documentation of regular self-audits of the companys I-9 forms;

3.      Participation in the E-Verify program;

4.      If the employer makes use of contract labor, then have written and signed documents that require contractors to adhere to all applicable immigration laws and regulations to ensure only workers with proper authorization are placed on the employers work site.

Conclusion


Since 9/11 the immigration climate in the United States has changed.  The financially empowered Department of Homeland Security is vigorously pursuing any leads, investigating employers in search of illegal immigration activity.  For an employer, it is shrewd to stay aware and prepared, averting possible ICE investigation by following simple steps in business organization.  I-9 form compliance, e-Verify registration and self-auditing serve as the best armor, preventing unwanted stress of dealing with the immigration authorities.
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