Hiring Illegal Immigrants and Other Unauthorized Workers
It is a violation of federal law to hire an illegal immigrant, anyone who is not authorized to work in the United States, or even to hire a contractor who employs unauthorized workers. The Immigration Reform and Control Act, among other federal statutes, requires an employer to verify that each employee is authorized to work in the United States.
Employers are also required to complete an Employment Eligibility Verification Form (Form I-9) for each employee hired after November 6, 1986. The I-9 form must be retained by the employer for either three years after the date of hire, or one year after the date employment is terminated, whichever is later.
Form I-9 is not required for employees who are casual, intermittent domestic workers, workers hired through an agency, independent contractors, workers hired before November 6, 1986, or working outside of the United States.
If the employer receives information later that indicates that an employee may not be authorized to work in the United States, the employer is required to investigate and to verify the employee’s work authorization status.
Verification of Employment
While some illegal immigrants may falsify documents to gain employment, the mere fact that an employee provided fake documents may not absolve the employer of responsibility under the law. All employers are required to make a good faith effort to verify that their employees are legally permitted to work in the United States. As a result, the court may find, for example, that an employer who fails to ensure that the social security number provided by the employee is a valid social security number is in violation of the law.
To aid employers in verifying the work authorization status of employees, the United States Citizenship and Immigration Service (USCIS) has instituted an electronic employment verification system known as E-Verify. E-Verify is a free service that gives employers access to federal databases to help confirm the employment authorization status of new employees. Employers are not required to use the E-Verify system, but employers who do use the system must follow specific procedures put in place to protect employees from unfair employment actions. The employer must use E-Verify for all new hires, including U.S. citizens, and the system cannot be used as a pre-screening tool or for employees hired prior to the employer’s participation in E-Verify.
What Qualifies as a Violation?
There are several ways in which an employer can be found in violation of the law. These include:
- Knowingly hiring or continuing to employ an unauthorized alien for work in the United States
- Committing or participating in document fraud in the employment verification process
- Failing to comply with employment verification requirements, including completion and retention of Form I-9
- Engaging in a pattern or practice of hiring, recruiting or referring unauthorized workers for a fee
Penalties for Hiring Unauthorized Workers
If an investigation is conducted and it is found that the employer is in violation of the law, the Department of Homeland Security issues a notice of its intention to fine the employer. If the employer does not request a hearing within 30 days to protest the penalty, the penalty will be automatically imposed and cannot be appealed.
There are both civil and criminal penalties that can be imposed for hiring an illegal immigrant. Each offense – meaning each unauthorized employee hired or continued to employ – carries a separate penalty, and penalties increase for employers who are repeat offenders. Fines can range from a few hundred dollars per employee for first offenses related to paperwork to tens of thousands per employee for repeated instances of unlawful employment of aliens. Employers who have been determined to have a “pattern or practice” of these kinds of violations can get up to six months in jail.
An employee found to have used false identification papers or work authorization documentation, made false statements, or used identification belonging to another individual to verify their eligibility to work are also subject to fines and potential imprisonment.
Although employers are required to verify the work authorization of their employees, they must go about doing so with care. Federal laws prohibiting the hiring of unauthorized workers also prohibit discrimination against an employment-authorized individual in hiring, firing, or recruitment or referral for a fee based on national origin, citizenship, or immigration status.
Employers are not permitted to request more or different documents than are required to verify employment eligibility, cannot reject reasonably genuine-looking documents, or require employees to provide certain documents over others. It is also forbidden to require an individual to post a bond or provide a financial guarantee or indemnity against any potential liability arising under the employment verification requirement. Employers who have been found to discriminate in this manner can be required to pay back pay or to hire the person they have been found to have discriminated against.
If you need help with your hiring practices, or if you believe you have been discriminated against by an employer based on your nationality, citizenship or immigration status, you can find a qualified employment lawyer or immigration lawyer on our site who can help.
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