Illegal Alien Employment Law

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 What Is The Law Concerning Employment and Illegal Aliens?

It is illegal to hire an undocumented alien, recruit an undocumented alien or refer an alien for employment for a fee, knowing the alien lacks the legally required authorization to work in the U.S. It is also illegal to continue to employ a person who is not authorized to work in the U.S. with knowledge of the person’s unauthorized status.

In recruitment and hiring, employers are allowed to give preference to a U.S. citizen over an alien even if the alien is authorized to work in the U.S., but only if the U.S. citizen is equally or better qualified. It is illegal to employ a person in the U.S. without complying with the employment eligibility verification requirements of U.S. law.

Verification requirements include examining the identity documents of the prospective employee and then completing Form I-9, an employment eligibility verification form for every employee hired. Employers must keep all of the Form I-9s that they complete.

An employer must make all of the I-9s they have available for inspection with 3 days advance notice. Additionally, with 3 days advance notice, they must be made available for inspection by the U.S. Citizenship and Immigration Services (USCIS).

Employment is performing any service or labor for any kind of compensation in the U.S. Domestic service in a private home on an irregular basis is not considered employment. However, day laborers or other casual laborers who engage in any kind of activity for which they are compensated are considered employees for the purposes of immigration law.

An employer includes the employer themselves or an agent acting on behalf of the employer. For purposes of verification of authorization to work, an employer is also an independent contractor or a contractor other than the person who receives the service of the alien labor. It is not a legitimate way to get around the requirement to verify an employee’s authorization to work to use temporary or short-term contracts.

If a person’s employment is going to last for less than the usual three days, which is the time allowed for completing the I-9 Form requirement, an employer should complete the form immediately at the time of hire.

The U.S. Immigration Reform and Control Act (IRCA) was signed into law in 1986 with the goal of reforming the regulation of the status of unauthorized immigrants as set forth in the Immigration and Nationality Act.

It was the initial effort of Congress to comprehensively address the issue of unauthorized immigration. It included criminal and civil sanctions for employers for hiring undocumented immigrants, more border enforcement as well as a more expansive legalization program.

This bill gave unauthorized immigrants the opportunity to apply and gain legal status if they met certain requirements, and the U.S. Attorney General eventually determined the status of those who applied. The USCIS is responsible for implementing this law.

What Can an Employer Do to Avoid Hiring Illegal Aliens?

Federal law requires all employers to verify that all of their employees are legally authorized to work in the U.S. to avoid hiring illegal aliens. This requirement applies to organizations of any size and number of employees. It also applies in the case of hiring part-time employees, domestic help, and farm laborers. So, an employer should always err on the side of caution and verify that any hires are legally authorized to work in the U.S.

It is important for an employer to remember that this verification applies to ALL employees, whether there seems to be an issue or not. An employer may run into problems with alleged discrimination if the questions about authorization to work and immigration status are asked only of people who do not “seem” to be American.

Under labor laws prohibiting discrimination, only asking certain people based on their race, nationality, speech, or cultural differences could be a problem. Again, an employer wants to verify the status of all employees.

What Is the Punishment for Employing Illegal Aliens?

The punishment for employing illegal aliens may lead to both civil and criminal penalties. Under civil law, knowingly hiring an illegal alien could lead to the payment of fines from $250 up to $2,000. In addition, the employer may be ordered to cease and desist from the practice.

If it is discovered that the illegal alien employee had filled out a Form I-9 incorrectly or fraudulently, the payment of additional fines from $100 up to $1,000 may be ordered. Criminal punishments may include the payment of fines or imprisonment, but only if an employer is a repeat offender.

Are There Any Exceptions to This Law?

As noted above, there are two exceptions to verifying immigration status. The first exception is a worker who can be considered a casual hire because this does create a valid employer-employee relationship. The only other exception is for employees who have resigned or have been fired and are then rehired. If the employee is rehired within three years from the date of the completion of the employee’s previous I-9 form, it is not necessary to complete another. Employers must retain the form for both of these employees.

Can an Illegal Alien Get a Green Card Through Employment?

It is possible but difficult for an illegal alien to get a green card through employment. It can possibly be done as follows:

  • If an illegal alien is a so-called “first preference” immigrant worker, meaning that they have one of the following qualifications:
    • Have ability in the sciences, arts, education, business, or athletics that can be considered extraordinary;
    • Is an outstanding professor or researcher;
    • Is a manager with international experience or an executive who meets certain criteria;
  • Is an illegal alien who is a so-called “second preference” immigrant worker, which means that they have one of the following qualifications:
    • Are a member of a profession that requires an advanced degree, e.g., a medical doctor;
    • Are a person who is considered to have some kind of exceptional ability in business, the arts, or science;
    • Are seeking a national interest waiver;
  • Is a so-called “third preference” immigrant worker, meaning they are:
    • A skilled worker, which means that their employment requires a minimum of 2 years of training or work experience;
    • A professional, which means their  job requires at least a U.S. bachelor’s degree or foreign equivalent, and they are a member of a profession, or
    • An unskilled worker, which means that they perform unskilled labor requiring less than 2 years training of or experience.

Getting authorization to work if one is present in the U.S. without it depends in part on how the person entered the U.S. If a person committed a particular act or violation of immigration law, they may be barred from getting authorization to work. The Immigration and Nationality Act (INA) lists the bars to a person getting authorization to work. A person would probably want to consult an experienced immigration lawyer for advice on this issue.

Do I Need an Attorney to Help With My Employment of Illegal Aliens?

If you believe that you have hired illegal aliens, you want to consult an experienced employment lawyer for guidance on how to proceed. LegalMatch.com can connect you to an immigration lawyer who can review the facts of your situation and advise you as to how best to proceed.

Or you may not be certain that your hiring procedures comply with the requirements of federal law. In this case, your immigration lawyer can review your present policies and procedures and make sure you are complying with all federal requirements. You do not want to wonder if you are complying with the law – you want to be sure, and an experienced lawyer can help you implement procedures that are certain to comply with the law.

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