The New Bite in Immigration Enforcement—it’s not Just for Undocumented Aliens

Posted by Law Article on July 16th, 2009 at 10:39pm

My practice is exclusively immigration law.  Friends, family, and folks I meet when out and about invariably ask me if I see a lot of Hispanics.  Immigration law is not just a matter for the millions of undocumented foreign nationals, many millions of whom are not Hispanic. 

The mistake many business owners, employers, executives, managers, and supervisors make is to think immigration law does not affect them.   Most business owners, executives, managers and supervisors will never file a visa application for a worker. But the mistake they make is assuming they do not need to worry about immigration laws.  

Despite the focus on immigration in the news, a large number of companies fail to comply with the I-9 laws that have been in place since 1986.  I-9’s are required of every employer for every employee.  I-9’s have to be completed timely, correctly by both the employee and the employer, some employees need to have their I-9’s reviewed, every employer has to properly retain their I-9’s.  Business owners, company officers, executives, managers and key employees are liable personally for civil and criminal penalties for I-9 related errors.

An estimated 5 percent of the U.S. work force is not eligible to be lawfully employed.  Immigrations and Customs Enforcement (ICE) workplace arrests have soared 869 percent since 2002. With Congress unable to agree on immigration law changes, state governments are applying their own pressure. In 2007, 19 states enacted a total of 33 laws relating to immigration and employment issues, including worker verification by employers and contractors.

Why should you care?  You should care because business owners, executives, managers and supervisors can be prosecuted for criminal (also known as “how good do you look in an orange jumpsuit?”) liability, in addition to company monetary penalties.

The Immigration Reform and Control Act of 1986 (”IRCA”) provides that every employer in the country is required to verify the identity and work authorization status of every employee of the business on an I-9 Employment Verification Form, that every worker must complete on the day of hire or earlier. Failure to comply with IRCA’s I-9 rules can result in significant fines, loss of access to government contracts and highly negative publicity for a company.

What penalties does an employer face for I-9 violations? Employers face stiff penalties for IRCA and I-9 violations substantial fines and debarment from government contracts. Penalties can be imposed for hiring unauthorized workers as well as simply for committing paperwork violations even if all workers are authorized to work. Fines for hiring unauthorized workers will amount to anywhere from $250 to $5,500 per worker depending on the prior history of violation. Employers can also be barred from competing for government contracts for a year if they knowingly hire or continue to employ unauthorized aliens. Paperwork violations can also result in significant fines. Each mistake or missing item on a form can result in a $100 penalty up to $1000 for each form. A missing I-9 Form would automatically be assessed at $1000. An employer, for example, that had 100 employees and did not complete I-9 Forms might face a $100,000 fine. IRCA investigators have considerable discretion in assessing fines and will look at factors like the size of the company, the seriousness of the violations, whether the employer was trying to comply in good faith and the pattern of past violations.  

Employers should also be cautioned that knowingly accepting fraudulent documents from employees, or accepting them with “constructive knowledge”,  is a different kind of violation that can be criminally prosecuted, including individual criminal liability for officers, executives, managers and supervisors, under other immigration laws.  

Aside from federal violations, many states have passed or are considering passing laws that would penalize employers violating IRCA including barring such employers from state contracts and revoking their business licenses.

You are not familiar with ICE enforcement?  Read some of my favorite quotes from Julie Myers, Department of Homeland Security Assistant Secretary for Immigration and Customs Enforcement (Director of ICE)

 

One of ICE’s more active special agents, Brian M. Moskowitz, reinforces his boss’ enforcement bite:

 

So next time you think immigration law only affects undocumented foreign nationals, think about whether any immigration laws may impact you, your family, your neighbors, and whether they are up to speed on the new bite in immigration enforcement.

You can visit my I-9 website for everything you want to kjnow about I-9 employment eligibility and verification, and ICE worksite enforcment.

 

Tags: Employment Eligibility, Employment Verification, Gerald Goulder, I-9, Ice, Illegal Alien, Illegal Worker, Immigration And Customs Enforcement, Immigration Law, Immigration Lawyer, Julie Myers, Work Permit, Worksite Enforcement