According to federal law, it is illegal for anyone to engage with an illegal immigrant in any of the following ways:
- Hiring an illegal immigrant;
- Recruiting an illegal immigrant; and/or
- Referring an illegal immigrant for employment and receiving a fee.
Also prohibited is the hiring of a contractor who employs illegal immigrants. The consequences for engaging in any of 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 authorization to work in the country. Even some Social Security cards are restricted and do not serve as adequate verification of authorization to work.
Even a person who has an immigration status that allows them to be legally present in the U.S. still may not have authorization to work. Employing people who do not have authorization to work in the U.S. is the act that federal law prohibits.
The consequences a person or business may face for hiring a person who does not have work authorization include:
- Criminal and/or civil fines;
- Loss and/or suspension of business licenses;
- Damage to business’ reputation; and/or
- Hiring and/or replacing various management personnel.
In some states, a business may lose its operating licence if it is found to be hiring illegal immigrants. Additionally, the state may require the business to change their hiring policies and practices so they conform to federal immigration laws.
Federal law requires every employer to verify the work authorization of every employee they hire at the time of hiring. The employer should complete an I-9 form within 3 days of hiring a worker. An employer is not required to check the work authorization of people hired 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 liable.
An employer who does not fill out an I-9 form for a worker or who does not keep the form on file for the required 3 years could face both civil and criminal penalties. The penalties for I-9 form violations, e.g. not completing it or not keeping it on file, include the following:
- A fine of from $110 to $1,100 for each I-9 violation, including:
- incomplete forms;
- failure to show forms to auditors; and/or
- failure to keep the I-9 forms for the proper length of time;
There is some complexity to how the Immigration and Customs Enforcement (ICE) agency calculates form I-9 penalties. They can now add the number of I-9 violations to other hiring violations so as to inflate penalty amounts and penalties can quickly mount into the tens of thousands of dollars.
What Are the Penalties for Hiring an Illegal Immigrant?
The punishment for hiring illegal immigrants can include fines that increase with each violation and even potential jail time. Fines increase with each offense. For a first offense, a person may be fined $375 to $2,000 for each illegal employee hired. For a second offense, the fine increases to $3,200 to $6,500 for every illegal employee hired. If an employer has three or more offenses, they may be fined an amount of from $4,300 to $16,000 per illegal employee hired.
If an employer shows a pattern of knowingly employing illegal immigrants by doing such things as repeatedly hiring workers without work authorization, they may be subject to extra fines and/or up to 6 months in jail.
This is a different offense than that of harboring an illegal immigrant or employing 10 or more illegal immigrants in one year. A conviction for harboring an illegal immigrant or employing 10 or more illegal immigrants in one year could lead to a sentence of 10 years in prison.
Employers should also be informed about the Racketeer Influenced Corrupt Organizations (RICO) Act. An employer can be prosecuted under the RICO act for hiring illegal immigrants.
In 1996, Congress amended the RICO act so that it includes violations of federal immigration law. Under the amended RICO, a violation of certain provisions of the Immigration and Nationality Act (INA) is defined as a racketeering activity. A person or other entity that engages in a pattern of racketeering activity for financial gain can face both civil and criminal liability. Encouraging illegal immigration or hiring illegal aliens are illegal under the INA, and these acts are now included in RICO as predicate offenses.
In addition, if a business develops a reputation for hiring illegal immigrants, it can start to harm one’s business prospects. Other businesses and individuals would want to avoid doing business with an entity that is engaged in chronic hiring of unauthorized workers because they would fear risking criminal violations by association.
What If the Illegal Immigrant Is Using a False or Stolen Identity?
There may be cases when an illegal immigrant who lacks work authorization uses a false or stolen identity in order to obtain work authorization. Illegal immigrants looking for work sometimes engage in identity theft. An employer is required to make a good faith effort to ensure their employees are legally authorized to work in the United States. A good faith effort means checking the Social Security number provided by the employee and making sure it is valid. In addition, if an applicant is not a citizen, then documentation of their immigration status and especially their authorization to work would be necessary.
If an employer makes a good faith effort to determine whether a new hire has work authorization and that any documents presented are legitimate, the employer should not be criminally liable.
However, if any new information suggesting that a worker does not have work authorization comes to the attention of the employer after the worker is hired, an employer should look into it.
Failure to pursue new information and respond appropriately, employers can be held liable not only for actual knowledge of a worker’s undocumented status, but also for “constructive knowledge”; that is, basically, for having reason to know.
Are There Any Defenses for Hiring Undocumented Immigrants?
Companies fined for hiring illegal immigrants want to think about whether they can show that they made a good faith effort before hiring someone who turned out not to have work authorization. In many cases, the legal penalties for a business that hires illegal immigrants will be more severe if the owner or supervisor were aware they were hiring illegal immigrants. It may even lead to such legal claims, such as harboring an illegal immigrant or conspiracy to defraud government officials.
The penalties may be less severe, if the business owner was not aware that one of its employees was actually not authorized to work in the United States. If a business owner has exercised reasonable judgment and made a good faith effort to check the employee’s documents and learned that they appeared to be valid, they may be excused from the violation in some cases.
An example of this is where the illegal immigrant presents a fake document or government identification when applying for the job. Then, if nothing comes to the employer’s attention to alert them to the worker’s lack of authorization, that fact would strengthen the employer’s defense.
However, there are newer technologies and policies in place, such as the E-Verify system. that employers can use to check on a worker’s status. These new systems utilize computer databases and fingerprints to verify immigration status for employment. Therefore, it is much more difficult to persuade immigration officials of a person’s lack of awareness than it might have been before these systems came into use.
How Can I Protect Against an Immigration Violation?
There are several steps that a person and other entities can take to prevent immigration hiring violations. Some suggestions for steps that can be taken are as follows:
- Conduct thorough checks of employee documentation, especially work authorization;
- Gain knowledge of immigration and employment documents, so that fake documents can be spotted easily;
- Educate oneself about work authorization, and especially how it should be documented;
- Inform oneself about computerized E-Verify requirements;
- Investigate any suspicious activity or new knowledge that comes to one’s attention immediately; and
- Seek the advice of an experienced employment lawyer if a person is unsure about a certain applicant and/or document.
The Immigration and Customs Enforcement (ICE) agency of the federal government is the agency that is responsible for enforcing immigration laws. If a person wishes to report a company for hiring undocumented workers, a tip form is available online at the ICE website. A person who wishes to report a violation can consult the form and see what information is required and then gather the necessary information.
Do I Need an Attorney to Help with My Employment of Illegal Aliens?
If you do not feel confident that you can avoid immigration law violations in hiring, you should consult an experienced employment attorney. As noted above, employers may face extensive penalties for employment of illegal aliens. It is important to have an experienced employment lawyer assist you with any issues related to the employment of illegal immigrants.
An employment attorney can assist you with the hiring process, ensuring employees are authorized to work in the United States, and represent you during any court proceedings, if necessary.