Until 1986, employers risked very little if they hired undocumented immigrants. The Immigration Reform and Control Act of 1986 (IRCA) began sanctioning employers who hired and/or recruited individuals who were unauthorized to work in the United States. These sanctions are legal penalties that are imposed on employers who are caught violating the Act.
What are Some Consequences of Hiring Undocumented Workers?
Anyone who is charged with hiring undocumented workers may be subject to civil and criminal penalties. For employers who have engaged in a “pattern and practice” of hiring these workers, they may be fined up to $3,000 for each employee, and the employer may be imprisoned for up to six months. Civil penalties involve a minimum fine of $375 for each undocumented worker, and up to $1600 per worker for subsequent offenses.
Additionally, the business may lose profits, its reputation may be tarnished, and the government may even revoke the business’ operating license. If the business had any government contracts, then they can lose and be barred from any they currently have and any in the future. Employers must use extreme caution in their hiring practices by following employment eligibility verification procedures.
They also must be careful when sponsoring a foreign national to work in the U.S. for their company. For instance, an alien labor certification may be required for a work permit visa. During the certification process, problems may arise including immigration fraud and visa fraud.
It is important that both the employee and the employer make sure that they follow the steps for a work permit visa or a green card. Both options have specific requirements (like the type of work, the type of company, etc.) and will have different, but equally time-consuming, steps.
How Can a Business Owner Protect Against Liability?
In order to defend against liability, it is essential for the business owner to adhere to federal immigration law. This entails using the E-Verify System that checks the background and work authorization status in electronic databases, and the employer must ensure that all I-9 forms are completed and submitted properly.
Typically, if an employer is making a good faith effort to remain in good standing with immigration and hiring requirements, they are likely protected from liability. However, if the employer knowingly violates any rules, they may be held liable.
If an employer currently and knowingly has undocumented employees, and they wish to avoid sanctions/penalties from the government, then it is important that they address the issue right away. Either terminating the employee’s position or by helping them take steps to obtain an employer sponsored green card.
However, in many instances if the employee is already here illegally, it is difficult to obtain a green card unless they return to their place of origin. It is important to discuss your options with an immigration lawyer before you apply for a green card, to make sure that you and your employee are not at risk.
Do I Need a Lawyer for Help with Hiring Laws?
Immigration law and any violation associated with hiring undocumented workers is serious. Not only are the legal penalties severe, but the potential for other damages that the business may incur could cause irreparable harm. A local immigration lawyer can help ensure that you are properly adhering to the rules and regulations set forth in immigration laws, and protect you from future liability.