The punishments for hiring undocumented or illegal immigrants can often be rather strict for business owners.
These may include:
- Criminal or civil fines
- Loss or suspension of business licenses
- Damage to business reputation
- Hiring or replacing various management personnel
In some states, newer immigration rules may result in some businesses losing their operating license if they are discovered to be hiring undocumented immigrants. Also, the state may require the business to change its hiring practices and policies to conform to immigration regulations.
What Is the Definition of an “Illegal Immigrant”?
For immigration law purposes, an “illegal immigrant” is any individual who is unlawfully present within U.S. borders. An illegal immigrant typically intends to relocate permanently within the U.S., but they may face some grave legal risks in doing so illegally.
Illegal immigration can occur in several ways, including:
- Entering without a visa or valid entry document
- Overstaying valid visa
- Re-entering the country illegally after being removed from the U.S.
- Violating travel conditions while in the U.S. for a temporary visit (for example, leaving the
- U.S. for longer than is permitted, then returning)
- Gaining entry into the U.S. using fake or fraudulent immigration documents
- Impersonating a U.S. citizen for residential purposes
Many immigration policies aim at identifying illegal immigrants. For example, newer programs such as the E-Verify system and various biometric programs use technological advances to identify individuals in the country unlawfully.
Are There Any Defenses for Hiring Undocumented Immigrants?
Legal penalties for hiring illegal immigrants may often be harsher if the business owner or supervisor knew that they were hiring undocumented immigrants. This may even result in other legal suits, such as harboring an illegal immigrant or conspiracy to defraud government officials.
Penalties may be reduced if the business owner did not know that one of their employees was not certified to work in the U.S. or did not have a valid work permit. If they exercised their reasonable judgment and made a good faith effort to check the person’s documents, they may be excused from a violation in some cases. For instance, this can happen if the employee used fake documents or I.D.’s when applying for the job.
Nevertheless, newer technologies and policies such as the E-Verify system use computer databases and fingerprints to confirm immigration status in terms of employment. Therefore, it is much more challenging to defraud immigration officials than in previous years.
What Counts as Hiring an Illegal Immigrant?
According to federal law, it is illegal for anyone to engage with an illegal immigrant in the following ways:
- Hiring an illegal immigrant;
- Recruiting an illegal immigrant; or
- Referring an illegal immigrant for employment and obtaining a fee.
Also forbidden is the hiring of a contractor who employs illegal immigrants. The consequences for engaging in this conduct could involve both criminal and civil penalties.
An “illegal immigrant” is a person who does not have legal authorization to live in the U.S.
A person who does not have legal authorization to live in the U.S. also does not have the authorization to work in the country. Even some Social Security cards are restricted and do not serve as satisfactory verification of permission to work.
Even a person who has an immigration status that permits them to be lawfully present in the U.S. still may not have the authorization to work. Employing individuals who do not have permission to work in the U.S. is an act that federal law prohibits.
The consequences a person or company may face for employing a person who does not have work authorization include:
- Criminal or civil fines;
- Loss or suspension of business licenses;
- Damage to business’ reputation; or
- Hiring or replacing various management personnel.
In some states, a business may lose its operating license if it is found to be hiring illegal immigrants. Additionally, the state may require the business to change its hiring policies and practices, so they conform to federal immigration laws.
Federal law directs every employer to verify the work authorization of every worker they hire at the time of hiring. The employer should complete an I-9 form within three days of hiring a worker. An employer is not required to check the work authorization of individuals employed as independent contractors. However, if an employer knows or has reason to know that an independent contractor is not authorized to work in the U.S., the employer can be held responsible.
An employer who does not fill out an I-9 form for a worker or does not keep the form on file for the required three years could face civil and criminal penalties.
How the Immigration and Customs Enforcement (ICE) agency calculates form I-9 penalties is complicated. They can now add the number of I-9 violations to other hiring violations to inflate penalty amounts, and penalties can quickly climb into the tens of thousands of dollars.
What Is the E-Verify Program?
E-Verify is a free internet program that permits employers to check whether their immigrant employees are eligible for work in the United States. The program was created by the Department of Homeland Security (DHS) in 1997 but has dramatically grown since then.
It is estimated that more than 700,000 employers use the program nationwide, with about 1,400 new companies signing up for it each week. The E-Verify program is mandatory in some states and for some employers.
How Does E-Verify Work?
By law, an employer and worker must complete a Form I-9 once the worker is hired for pay. Next, the employer enters data from the employee’s Form I-9 into the E-Verify database, and a case is created for the employee.
The E-Verify system will then run a comparison between the Form I-9 and the employee’s immigration information from other government records, including:
- U.S. passport and visa;
- Immigration and naturalization records;
- State-issued driver’s licenses and identity documents; and
- Social Security Administration records.
The program will then produce results regarding whether the details match. These results may appear in as little as 3-5 seconds. If the info does not match, the employee cannot begin working. The employer and employee have only eight federal working days to settle any mismatched or incorrect info.
When Is an Employer Required to Use the E-Verify System?
Presently, E-Verify is not required for all employers. Nevertheless, registration with the E-Verify system is necessary for some employment situations, such as for federal government employees and some federal contractors. In addition, airport operators can now use the program for their badging application process.
Also, at least 20 states have laws about the mandatory use of the E-verify program. Even in the states that have enforced the program, it is sometimes only required in certain counties or situations. Nevertheless, employers should become familiar with this program because it is likely to become mandatory.
How Can I Protect Against an Immigration Violation?
Some actions that business owners can take to deter immigration hiring violations may include:
- Conducting thorough checks of employee credentials.
- Researching immigration and employment documents, so you can spot fakes easier.
- Conforming with the various immigration hiring policies, particularly the computerized E-
- Verify requirements.
- Noting any suspicious activity will help you defend yourself and your business from violations.
- Hiring a lawyer if you are unsure of a particular applicant or document.
Do I Need a Lawyer for Assistance with Immigration Laws?
Immigration regulations and policies can often be subject to change over time. Also, each state may have drastically different immigration laws compared to another state. You may wish to hire an immigration lawyer if you need clarification or legal help with an immigration or employment issue. Your lawyer can inform you of how to proceed and represent you if you need to file a claim in court.