By: Coleman Jackson, Attorney
March 5, 2018
Any individual who is not a citizen or national or lawful permanent resident or specifically authorized to work in the United States cannot be lawfully hired as an employee by any individual, company or agency. Any employer who intentionally hires anyone not authorized to work in the United States violates Public Law 99-603 (Act of 11/6/1986). This law was passed by the U.S. Congress and signed by President Ronald Reagan in order to control and deter unlawful entries into the United States. This law, commonly referred to as amnesty provided for legalization of undocumented immigrants who had been continuously unlawfully residing and working in the United States since 1982, legalization of certain agricultural workers, sanctions for employers who knowingly hire undocumented workers, and increased borders enforcement.
This blog’s focus is on the provision of Public Law 99-603 that prohibits and penalizes any U.S. individual, organization or agency that intentionally hires or recruits to hire workers who are not authorized to work in the United States. U.S. Citizenship and Immigration Services (USCIS) Form I-9 is required to be used by all employers regardless of whether they are classified as large, medium, small employers to document their continuous compliance with their obligations under Public Law 99-603. Form I-9 is a three page document. Employers and Employees are required to complete their respective sections of Form I-9. Form I-9 comes with a 15 page detailed set of instructions to employers and employees that must be complied with from the very initial stage of hiring any worker by an American person or business. Since November 27, 2011, American employers must complete Form I-9 to document verification of the identity and employment authorization of each and every new employee. The rule applies to all employees regardless whether the employee is a United States Citizen, National, and Lawful Permanent Resident or otherwise lawfully authorized to work in the United States. The employee must complete their section of Form I-9 within one day of starting to work, and the employer must complete their section of Form I-9 within three days of the employees hire date. The employer cannot simply take the employees word for it. The employee must provide unexpired documentation from the categories listed on page three of Form I-9. Again, the employer cannot tell the employee what documentation to present. The employer or their agent must personally examine the actual document (original) presented by the employee. The employer must make a copy of the documents presented and maintain them in their files. Moreover, the employer has a continuing obligation under Public Law 99-603 to update their I-9 files when there is expiration date on an employees work authorization card. The requirements we have discussed in this paragraph can be thought of as the I-9 documentation requirements. Form I-9 is not filed with the U.S. government. Every employer must maintain an I-9 file on each employee and make it available for inspection and examination in the event of an Immigration and Customs Enforcement visit. Immigration and Customs Enforcement (ICE) performs I-9 audits without advance notice. ICE workplace audits have been on the rise in recent years. ICE raids affecting some of the larger employers have been widely reported on by the U.S. press. But just because an employer is not a large company does not mean that they are exempt from ICE I-9 Immigration and Nationalization Act (INA) enforcement actions. All U.S. employers are subject to an ICE raid regardless of whether they hire immigrants or not since Public Law 99-603 requires all employers to document the identity and authorization to work of all workers, including U.S. citizens, Nationals, Permanent Residents, and others. All employees mean all employees and all employers mean all employers regardless whether the employer is hiring a new hire, a rehire, temporary or permanent worker. All U.S. employers potentially face workplace enforcement of employment eligibility ICE raids at anytime. Workplace enforcement raids are like a time bomb.
Repeat, federal immigration law applies to all U.S. employers. Who is an employer for purposes of workplace enforcement of employment eligibility rules? I will address it from the perspective as to who is an employee under the Act. An employee for Form I-9 purposes means any person who performs labor or services in the United States for an employer in return for wages or other compensation or payment. It could be remuneration in the form of payment-in-kind. Employee for Form I-9 purposes does not include independent contractors, subcontractors, volunteers or certain casual domestic workers. By looking at it from the vantage point of who is an employee, employers should be able to determine whether they are likely to be considered an employer for Form I-9 purposes.
Are there any penalties for U.S. employers who violate the law? Yes, absolutely since all U.S. employers are subject to the workplace enforcement of employment eligibility rules! Besides the potential for public shame associated with cheating by hiring undocumented workers to gain an unfair advantage over competitors, the U.S. government can impose civil fines and even criminal prosecution in more heinous cases. The Form I-9 must be completed accurately. The Form I-9 must be maintained in a File by the employer. The Form I-9 must be made available for inspection anytime ICE asks to review them. When ICE finds that an employer has knowingly hired or knowingly continued to hire an unauthorized worker, or failed to comply with Form I-9 employee identification and work eligibility requirements, ICE or a Department of Homeland Security Administrative Law Judge will issue the employer a Notice of Intent to Fine (NIF). The employer has 30 days from receipt of the NIF to request a hearing on the merits. If the employer fails to respond to the NIF, it becomes final in 30 days. At the I-9 hearing, employers are able to raise good faith defenses (that is the employer made reasonable efforts to comply with the paperwork requirements of section 274A (b) of the INA.) If the employer looses at the hearing or fail to request a hearing or failed to attend the hearing, civil penalties will likely be imposed considering the size of the employer, lawful status of the employees involved, the seriousness of the infractions including prior I-9 violations, and the good faith efforts of the employer to comply with its obligations under the INA. Furthermore, employers who knowingly employ unauthorized workers or fail to comply with section 274A (b) of the INA could also face criminal prosecution. Employers convicted in federal court of having engaged in a pattern or practice of knowingly hiring unauthorized workers, or continuing to hire them after November 6, 1986 are likely to face fines and up to a maximum of six months in federal prison. Moreover, employees who use fraudulent documentation to gain U.S. employment can be subjected to civil fines and criminal prosecution resulting in up to 5 years in federal prison. The penalties that we have been discussing are under the Immigration and Nationalization Act (INA). But employees and employers who knowingly violate the INA could be subjected to other federal statutes that impose much harsher civil fines and criminal punishment. The Internal Revenue Code, U.S. Code 26; for example, imposes very severe civil fines and criminal penalties for taxpayers who violate U.S. federal tax statutes associated with misclassification of workers as independent contractors when in fact they are employees. Worker misclassification errors can place employers in serious legal jeopardy.
The burden of proving compliance with employment eligibility verification requirements is on U.S. employers. Suggested steps to get ready for an I-9 raid:
- Make a current list of all of your employees (current, new hires, rehires, terminated);
- Review Form I-9 files on everyone on the list (don’t forget that all employers must have an I-9 file for all employees, including U.S. citizens, Nationals, Lawful Permanent Residents and anyone else working as an employee);
- Check the I-9 files for the validity of the documentation (make sure nothing has expired because identity and work eligibility documentation must be current; these documents cannot be expired);
- Check off each employee as they are successfully vetted on the employer employee list as they are cleared;
- Follow-up on any discrepancies. Contact the worker for updated or corrected information and timely resolve the issue;
- Document the company’s Form I-9 procedures and periodical compliance with those procedures. Don’t’ forget to check for government changes in the requirements as part of the company’s due diligence process. Document due diligence and good faith efforts to comply with I-9 requirements—this all should be maintained in your I-9 Due Diligence Files;
- Follow-up and follow up some more on I-9 discrepancies and release any worker that cannot be vetted to work lawfully in the United States;
- Assign I-9 duties to competent individuals within the company or advisors competent in the law, taxes and immigration workplace matters. Exercise due diligence: gather pertinent information; understand the company’s I-9 obligations and cooperate with authorities in workplace enforcement of employment eligibility issues.
These are merely some suggestions designed to cut down on the fear and confusion that is often associated with ICE workplace enforcement. Due diligence can be a stress buster; while failing to prepare for a workplace enforcement of employment eligibility rules can be as serious blow to wealth as a heart attack can be to health.
This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader. You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.
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