The Trump administration has made it a priority to enforce immigration laws and deter illegal immigration. Using executive orders and directing agencies such as Immigration and Customs Enforcement on how to enforce these immigration laws, it is this administration’s mission to stop illegal immigration. But it’s not only the illegal immigrants that are breaking the law. Employers that employ unauthorized workers could also face consequences.
Employers that hire illegal immigrants, especially those that knowingly do so, are in violation of The Immigration and Nationality Act, specifically section 274A which deals with The Unlawful Employment of Aliens. The laws state that all U.S. employers are required to have an I-9 on file for every person employed. On the I-9 form, the employers are required to verify whether the employee is a U.S. citizen, a permanent resident, or a person with a non-immigrant visa that is authorized to work in the U.S., i.e., H-1B visa or a TN visa. The law requires that the employer see and record any information to prove the employee’s identity and employment authorization, i.e, a U.S. passport, green card, foreign passport with a Form I-94 to name a few. The full list is available on the I-9 form, and the employee can choose which documentation they wish to provide.
Although the employee will need to provide the documentation necessary to prove identity and employment authorization, it is the responsibility of the employer to ensure the form is completed properly and take reasonable care that the information is accurate. The I-9 form is supposed to be filled out within three days of the employee starting work and it is to be kept on file at all times. The Department of Homeland Security, Department of Labor, and the Immigrant and Employee Rights Section of the Department of Justice all have the jurisdiction to verify documents with only 3 days notice to the business, including weekend days if the business operates on those days. Businesses can request an extension, but employers are expected to have these documents on file and available at all times.
What happens if the business is not in compliance? Generally, businesses are not punished if they didn’t know the employee was not authorized to work at the time of hire. It is possible that the employee could give false information, such as a false social security number. However, failure on the company’s part to do due diligence is not considered a reasonable excuse. Once a company becomes aware that the employee is an illegal immigrant, the company is required to terminate the employee, providing 2 weeks notice. There are fines that a company can incur by employing illegal immigrants. First offenders face up to $4,313 per employee; second offenders can be fined up to $10,781 per employee and repeat offenders face up to $21,563 per employee. Employers will face criminal charges and jail time of up to 10 years per charge if they:
- knowingly and willingly employ more than 10 illegal immigrants at a time
- help smuggle the illegal immigrants into the U.S.
- participate in money laundering of proceeds from aiding and abetting illegal immigrants.
Although workplace audits have been on the decline in recent years, that is no reason to be negligent with compliance. ICE has every authority to come to any business requesting documentation for employees. It is important to always make sure your business is compliant, take every precaution to fill out I-9 forms correctly and do your due diligence to ensure all employees have the authorization to work in the U.S.
Davis & Associates are one of the top immigration law firms in Houston dealing with employer compliance. If you are concerned whether your company is in compliance with immigration laws, our Houston immigration lawyers provide expert legal counsel on all aspects of business immigration law.