Since 1987, employers have been required by law to verify
that every employee they hire is entitled to work in the United
States. Compliance requires that an I-9 Employment Eligibility
Verification form be completed for each and every new hire.
Significant fines and penalties can be imposed on those who
knowingly hire illegal immigrants or permit them to work after
discovering that they are not legal. What’s more, the failure to
document compliance, even if all your employees are legal, can
result in penalties being assessed. To minimize the exposure to
possible fines or penalties, employers with medium to large size
workforces should periodically audit their I-9 records.
The Immigration Reform and Control Act of 1986 (“IRCA”) made
it illegal for any U.S. employer to:
- Hire, recruit or refer for a fee an alien knowing he or she is
unauthorized to work; - Continue to employ an alien knowing he or she has become
unauthorized; and - Hire, recruit or refer for a fee, any person (citizen or alien)
without following the record keeping requirements of the Act.
The purpose of the employer sanctions provisions is to eliminate
the major incentive for illegal immigration to the United States: the
ready availability of employment.
The employer sanctions provisions contain two exemptions.
The first, a “grandfather” clause exempts from its provisions
the continuing employment of unauthorized aliens hired on or
before November 6, 1986, the date of the law’s enactment. The
second exempts “independent contractors” from the employment
verification and sanctions provisions, provided the service provider
falls within the strict definition of independent contractor. This
includes “individual entities who carry on independent business,
contract to do piece work according to their own means and
methods, and are subject to control only as to results.” Indicia of
independence include:
- Who supplies tools/materials;
- Whether services are available to public;
- Whether work is done for other clients;
- Whether there is an opportunity for profit or loss as a result
of the labor; and - Who determines order, sequence, and time work is done.
IRCA requires every employer to verify the work authorization
for each non-exempt employee within three (3) days of hire.
Immigration form I-9, entitled “Employment Eligibility
Verification” is utilized for this purpose. This form is divided into
three sections. The first is completed by the prospective employee
and includes their name, date of birth, address, and social security
number. It also requires the employee to attest to being: a citizen;
a permanent resident (a/k/a “green card” holder) or an alien
authorized to work through a certain date, which must be signed
and dated by the employee.
In the second section, the Employer is required to review and
verify documentation which establishes both the identity of the
employee and their entitlement to work in the United States. This
can be accomplished by viewing a single document such as a U.S.
passport or a green card, or through a combination of documents,
the most common being a drivers license (to establish identity)
and an unrestricted social security card (to establish employment
eligibility). The employer cannot dictate which document or
documents the employee presents without exposing itself to
potential liability under the anti-discrimination provisions of
IRCA.The third section is for updating and re-verification. In those
instances where the employee’s entitlement to work is limited
in duration, i.e. their green card or employment authorization
document expires on a certain date, the employer is required to
update and re-verify the employee’s continued right to work in the
United States. Without such documentation, the employer may not
continue to employ the worker without exposing itself to potential
fines for paperwork violations, or worse, liability for knowingly
employing an alien not authorized to work. Such knowledge may
be constructive or actual.
The number of possible documents that can be presented and
the quality of those documents often leaves the employer or their
human resource manager confused and unsure if their worker is
legal or not. Documents containing clear alterations, variations in
print type and misspelled words are indicators that the document
presented has likely been altered or may be fraudulent and should
put an employer on notice to inquire further. If there is nothing
unusual or suspicious about the document an employer need
not dig any deeper as they might uncover facts that require the
termination of a highly-valued employee. IRCA requires that the
employer act in good faith, but does not make the employer a
guarantor of each employee’s entitlement to work. Thus fines are only imposed if the employer “knowingly” hires or continues to employ an alien not authorized to work in the United States, or fails to properly complete an I-9 form for an employee subject to the provisions of IRCA.
Each employer must keep I-9’s and supporting documents on
file to establish that such verification has taken place, and present
such records for inspection by the Bureau of Citizenship and
Immigration Services (“BCIS” formerly known as the “INS”)
or the Department of Labor upon request. An employer who
fails to verify the employment authorization of workers hired
after November 6, 1986, may be subject to fines under IRCA
even if no illegal aliens have been employed. Fines for failure to
comply with the employment verification system, i.e. paperwork
violations, range from $100 to $1,100 per employee. Fines for
employment of unauthorized aliens are substantially higher and
range between $250 and $11,000 per unauthorized alien. They
may also include criminal charges being brought against the
employer.
In conclusion, all employers are required by law to verify the
employment eligibility of each new hire. Failure to properly
complete an I-9 Employment Eligibility Verification form
can result in the imposition of fines, which may be further
compounded if it is determined that the employer “knowingly”
hired or continued to employ an unauthorized alien. For employers who have not instituted a compliance program we recommend that an “immigration audit” be conducted every
two to three years and that all personnel records be reviewed to
determine which employees require the completion of an I-9 and
which are “grandfathered.” Any missing or incomplete I-9 forms
should be properly completed and the date of any changes or
additions should be properly noted. While late completion will
not insulate the employer from liability for paperwork violations,
it is a mitigating factor and can often reduce the scope and size of
any fine that may be imposed.
Should you have any questions on IRCA or the employment
verification and sanctions provisions discussed herein, please feel
free to contact one of the attorneys in our Immigration Practice
Group.
