Employers Face Liability for Hiring Unauthorized Workers

One of the core purposes of the United States immigration laws is to protect the U.S. workers, which includes U.S. nationals, U.S. legal permanent residents and those who have unrestricted authority to work in the U.S. The Immigration and Nationality Act requires employers to verify the identity and employment authorization of all employees hired after November 28, 1986 by properly completing an Employment Eligibility Verification Form (Form I-9). The Act imposes penalties upon employers that fail to properly complete Form I-9 or hire workers who have no legal authority to work in the U.S. 

Q: What law addresses the employment of foreign workers?  
A: The Immigration Reform and Control Act (IRCA) was added to the Immigration Nationality Act (INA) in 1986 to make it illegal for employers to hire anyone who is not authorized to work in the United States. The Immigration and Naturalization Service, the predecessor to the current U.S. Citizenship and Immigration Service (USCIS), created an Employment Eligibility Verification Form (Form I-9) that employers have used to document the identity and employment authorization of every employee hired after November 28, 1986. Employers were not required to verify the identity or worker authorization of employees before that date.

Q: What are the penalties for not verifying work authorization?  
A: An employer that does not properly complete a Form I-9 on behalf of each employee within the first three days of employment faces possible penalties of $110 to $1,100 for each violation. In addition, an employer who signs an I-9 form containing false statements may be charged with perjury. In certain cases where there is a pattern and practice of violations, there may be criminal penalties.

Q: Where can I find a current I-9 form and guidance on how to complete it?  
A: Form I-9 and the accompanying employer handbook (M-274) were recently updated, and the updated versions must now be used. The new I-9 form and employer handbook can be downloaded from the USCIS website at www.uscis.gov. Employers should study the handbook, especially to find out what documentation is now required to verify workers’ eligibility. Of particular usefulness is the Q & A section in the M-274, which answers many the most-asked questions regarding the Form I-9.

Q: What are the penalties for employing someone who is not legally authorized to work in the U.S.?  
A: According to the Immigration Nationality Act, a company that “knowingly” uses illegal workers can be fined as much as $16,000 per worker. The employer also can face up to six months in jail if a pattern of violating the law is found. Also, a conviction for “harboring” illegal workers (knowingly employing 10 or more individuals with illegal status in a 12-month period) can lead to imprisonment of up to 10 years. 
 
Q: Has immigration enforcement increased recently?
A: It has remained steady. However, the amounts of the fines continue to increase and more employers are facing criminal charges for various types of violations. There has also been an increase in investigations filed with or opened by the Office of the Special Counsel for Immigration Related Unfair Practices as a result of employers failing to properly follow the immigration regulations relating to employment authorization and the Form I-9.

Q:  I received a letter from the Social Security Administration telling me that the name of one of our workers does not match the Social Security number that he provided. Can he continue to work for us?
A: This is a difficult question. As an employer, you must do two things to avoid liability:  complete a Form I-9 correctly and not “knowingly” employ unauthorized workers. Although there are legitimate reasons for a “mismatch” (including clerical error and name change), it is also the case that the use of a false Social Security number or the use of a Social Security number assigned to someone other than the employee will cause a mismatch.

Recent guidance has stated that receipt of a “no-match” letter alone is not evidence of a “knowing” violation of IRCA. As such, you, as the employer, need to protect yourself by following the instructions on the “no-match” letter. If you cannot resolve the “no-match” issue, it is appropriate then, and only then, to make a determination as to whether or not you can or should continue to employ the individual.  

Q: Can an employer be responsible for a contractor’s illegal workers?  
A: Yes. The IRCA explicitly makes anyone who knowingly “uses” illegal workers liable, even if a formal employer/employee relationship does not exist. In 2005, Wal-Mart paid $11 million in a lawsuit settlement because one of its contractors used illegal workers. Wal-Mart lost its argument that it should not be responsible since Wal-Mart did not directly employ the workers.
  
Q: Can companies verify the work authorization of an individual with the federal government? 
A: Yes. To help employers, the USCIS has implemented the “E-Verify” program. E-Verify is an Internet-based system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility. More information can be found online at: www.uscis.gov/e-verify/what-e-verify​.

9/18/2015

This "Law You Can Use" consumer legal information column was provided by the Ohio State Bar Association (OSBA). It was originally prepared by Sherry Neal, a partner in the Cincinnati office of Hammond Law Group.  

Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney.

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