New Immigration Enforcement Tactics

In 2006 alone, over 400 criminal charges have been filed against companies that have hired foreign workers who are not authorized to work in the United States.

Employer sanctions, what are they?

Until the late 1980s it was not illegal for an employer to hire an undocumented worker. However, with the enactment of the Immigration Reform and Control Act of 1986 (IRCA), Congress made it illegal for employers to hire undocumented workers. IRCA’s rules are referred to as “employer sanctions.” There are three employer sanctions associated with IRCA: 1) Employers are prohibited from knowingly hiring a noncitizen who is not authorized to work fork for them; 2) Employers must verify the identity and work eligibility of all their employees, even if they are US citizens, by filling out an I-9 form and maintaining proper I-9 records. If an employee fails to comply with the verification requirements, the employer must refuse to hire them; and 3) Employers are prohibited from intentionally discriminating in hiring or firing an individual on the basis of an individual’s national origin or citizenship status.

Employers face both civil and criminal sanctions for violating these employer sanctions. Civil sanctions for each offense of employing an unauthorized worker (not including paperwork violations) range from the following:  

1.                  First offense - $275 to $2,200 for each worker

2.                  Second offense - $2,200 to $5,500 for each worker

3.                  Third or more offenses - $3,300 to $11,000 for each worker

The penalty for paperwork violations (the failure to fill out and maintain I-9 records correctly) range from $110 to $1,100 for each I-9.

The severity of criminal sanctions that employers may face for violating the employer sanctions depends on the pattern and practice of the violations. The Immigration and Customs Enforcement (ICE) branch of the Department of Homeland Security (DHS) defines “pattern and practice” as “regular, repeated, and intentional activities.” Criminal violations are reserved for serious and repeat offenders who have clearly demonstrated an intention to evade the law. Criminal penalties can range from $3000 to 6 months in jail.

Recent trend in prosecutions

The Bush administration has recently signaled its intent to get tough on employment sanction violations. As a result ICE has begun a shift in enforcement by focusing on employers that are knowingly hiring undocumented/unauthorized workers. Such employers are facing criminal charges and seizure of assets rather than administrative fines. Therefore, with this new emphasis on prosecution, employers should make sure that they have an effective employer sanctions compliance program.

Tips for maintaining and Employer Sanctions Compliance Program

  1. Set up internal protocols for handling I-9 forms, including training.
  2. Do regular audits of your I-9 forms.
  3. Complete section one of the I-9 form on the first day that an employee begins work. The remainder of the I-9 form must be completed within three business days. If a worker fails to bring the documentation required by the I-9 within that time period, you may fire them.
  4. Do not request specific documentation from worker to verify employment eligibility. Let the workers choose from the list of acceptable documents listed on the I-9 form.
  5. Do not accept any documents that are not originals except for those stated on the I-9 form.
  6. If an employee provides a document that is not listed on the I-9 form, hand the document back to the employee and ask for another one from the I-9 list.
  7. If during a review of your records you discover that I-9 forms from certain employees are missing, get the documentation from those individuals immediately.
  8. If documentation provided by employees looks genuine on its face, do not ask for more proof as this can subject you to a national origin discrimination claim.
  9. Keep all I-9 records for three years after the date of hire or one year after the date of dismissal, whichever is later.
  10. Treat all employees and job applicants equally.