September 16, 2016
By:  Coleman Jackson, Attorney

Immigration law imposes certain hiring requirements on employers under the Immigration and Nationality Act (INA) section 274A.  The law requires every employer to maintain up-to-date Form I-9 demonstrating that they are in compliance with their responsibility to ensure that workers hired or recruited are authorized to lawfully work in the United States.  Hiring undocumented workers is illegal in the United States. 

Violations of these hiring requirements could lead to civil fines, criminal prosecution; debarment from government procurement contracts, and possibly violation of anti-discrimination laws which prohibit discrimination against workers based on nationality.

In addition to the legal jeopardy employers face who hire undocumented workers, from a practical perspective, publicly disclosed Form I-9 audit investigation information gives competitors a wealth of information, some of it quite proprietary and quite often this publicly disclosed I-9 investigation information is used by competitors to poach customers or otherwise secure competitive commercial advantage over companies suspected of hiring undocumented workers.    Competitive disadvantage is a very real possibility for an employer being investigated by Immigration Customs Enforcement suspected of hiring undocumented workers.

Companies who rely on government procurement contracts as a main stay of their revenue stream, also-  in the real world- has an awful lot to lose when hiring undocumented workers.   Government contract violators can be debarred from any future participation in government procurement which could mean bankruptcy for the offending government contractor.

So, from a real world perspective, the biggest dangers of non-compliance with immigration employment laws governing hiring undocumented workers under current U.S. Government immigration enforcement practices are (a) debarment of government contractors and (b) loss of competitive advantage due to disclosure of private company information to competitors and disparagement in the public eye.

For the last few years, criminal penalties don’t seem to be the weapon of choice in enforcement of Form I-9 regulations.  But this could change!

Over the last few years, civil money penalties have been the legal weapon used with regularity to enforce Form I-9 prohibitions against employers hiring or continuing to employ a person, or recruiting or referring for a fee a person, knowing that the person is not authorized to work in the United States are as follows:

Employers desiring to expand its work force by use of foreign labor need to make all efforts to do so legally by filing proper immigration petitions with the Department of Homeland Security and  obtaining certifications from the Department of Labor (when required).  Under current immigration laws, there are regulations and procedures by which an employer can legally hire temporary and permanent skilled and unskilled foreign workers.  Employers can pursue these processes with counsel of an immigration attorney.  Finally, employers should annually review their Form I-9 practices and policies under the watchful eye of an immigration lawyer to ensure compliance with employment immigration laws against hiring, recruiting or continuing to employ undocumented workers to limit or minimize their exposure to the civil, criminal, public shame, and competitive disadvantage risks we discuss in this blog.

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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