Until 1986, employers risked very little if they employed undocumented immigrants. The Immigration Reform and Control Act of 1986 (IRCA) started sanctioning employers who employed or recruited unauthorized individuals to work in the United States. These sanctions are legal penalties levied on employers who violate the Act.
What Are Some Consequences of Hiring Undocumented Workers?
Anyone charged with employing undocumented workers may be subject to civil and criminal liabilities. Employers who have engaged in a “pattern and practice” of hiring these workers may be fined up to $3,000 for each employee, and the employer may be imprisoned for up to six months. Civil punishments involve a minimum fine of $375 for each undocumented worker and up to $1,600 per worker for subsequent offenses.
Further, the business may lose profits, its reputation may be tarnished, and the government may even void the business’ operating license. If the business has any government contracts, they can lose and be barred from any they presently have and any in the future. Employers must use extreme vigilance in their hiring practices by following employment eligibility verification procedures.
They also must be cautious when sponsoring a foreign national to work in the U.S. for their company. For example, an alien labor certification may require a work permit visa. Problems may arise during the certification process, including immigration fraud and visa fraud.
Both the employee and the employer must observe the steps for a work permit visa or a green card. Both alternatives have distinct requirements (like the type of work, company, etc.) and will have different but equally time-consuming steps.
What Is Employment Eligibility Verification?
Employment eligibility verification is how employers verify that their foreign employees are eligible for work in the United States. According to federal and state regulations, all employers are forbidden from hiring unlawful aliens or foreign workers who are not eligible to work in the U.S.
Confirming employment eligibility is usually accomplished by requesting the employee provide official documents supporting their work status. The federal immigration department has recently implemented the immigration E-Verify system for employers. The E-Verify system authorizes employers to submit and check their workers’ data through online computer systems.
Breaches of employment eligibility verification regulations are treated very seriously, as they can result in harsh legal consequences for employers. These consequences may include fines, jail time, and a loss of employment license in some states.
Who Qualifies for an Employment Authorization Document?
To request an EAD, you must first file Form I-765, Application for Employment Authorization. In order to apply for an EAD, you are:
- Authorized to work in the United States because of your immigration status: For instance, if you are a refugee, an asylee, or a nonimmigrant, you will need evidence of your employment authorization; or
- Required to get the employment authorization itself for your job: You may fit in this class if you have a pending Form I-485 (Application to Register Permanent Residence or Adjust Status), a pending Form I-589 (Application for Asylum and Withholding of Removal), or you have a nonimmigrant status that authorizes you to be in the U.S., but work authorization is needed from the USCIS.
Students seeking special employment and individuals engaged to marry American citizens will also need an employment authorization document.
What Does the Employment Eligibility Verification Process Involve?
Form I-9 is the primary document employers must offer to the government to verify an employee’s work eligibility. Employers are generally required to complete a Form I-9 within three days of hiring a new worker.
The worker must usually deliver further employee documentation to support the information that they state in the I-9 Form. This may include birth certificates, passports, and social security numbers. These records will help confirm that the foreign worker has the legal privilege to work in the country.
The employer will then submit the completed Form I-9 to the proper employment or immigration agency. If the employer uses the E-Verify system, they can instantly check the info provided in the hard copy of the I-9 against electronic databases online.
If the information on the form does not fit the data in the computer database, it may signal that the worker has engaged in document fraud. Immigration and employment authorities have begun enforcing employment eligibility verification much more rigorously in the past decade. Nevertheless, introducing the E-Verify system has also made the process much faster and more efficient.
How Can a Business Owner Protect Against Liability?
To defend against liability, the business owner needs to adhere to federal immigration law. This entails using the E-Verify System that checks the background and work authorization status in electronic databases. The employer must ensure that all I-9 forms are completed and submitted correctly.
Normally, if an employer makes a good faith effort to remain in satisfactory standing with immigration and hiring prerequisites, they are likely covered from liability. Nevertheless, if the employer willfully breaks any rules, they may be held responsible.
Suppose an employer presently and intentionally has undocumented workers and wishes to avoid sanctions/penalties from the government. In that case, they must address the issue right away by either terminating the employee’s position or helping them take steps to obtain an employer-sponsored green card.
Yet, in many examples, if the employee is already here illegally, it isn’t easy to get a green card unless they return to their place of origin. It is essential to discuss your options with an immigration attorney before applying for a green card to ensure that you and your worker are not at risk.
Employer’s Steps in Obtaining an Employment-Based Green Card
If you are an employer who wants to hire non-US citizens, you must observe the proper steps and meet the federal prerequisites before hiring a non-US citizen employee.
First, you must file a labor certification with the United States Department of Labor (DOL). The certification must declare that there are no United States workers available or willing to fill the job position at your business. You must demonstrate proof of unavailability and unwillingness to the jobs by:
- Displaying that you advertised for the position;
- Establishing the skill requirements for the position;
- Verifying the salary or wage of position; and
- Demonstrating your ability to pay the salary or wage.
If the DOL approves your certification, you must file an Immigrant Petition for Alien Worker form (Form I-40).
When Is an Employer Required to Use the E-Verify System?
Presently, E-Verify is not mandatory for all employers. Nevertheless, registration with the E-Verify system is required in some employment conditions, such as for federal government workers 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 needed in certain counties or situations. Nevertheless, employers should become familiar with this program because it is likely to become mandatory.
Do I Need a Lawyer for Help with Hiring Laws?
Immigration law and any infringement associated with hiring undocumented workers are serious. The legal penalties are strict, but the potential for other damages that the business may incur could cause uncorrectable harm. A local immigration lawyer can help ensure that you adhere to the rules and regulations outlined in immigration laws and shield you from future harm.