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 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?
Form I-9 and the accompanying employer handbook (M-274) are periodically updated. The current 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 of 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 anywhere from a few hundred dollars to slightly more than $20,000, depending on whether it is a first-time, second-time or third-time offense.
Q: Has immigration enforcement increased recently?
A: Enforcement has increased since 2003, when the Department of Homeland Security was created, thereby creating separate agencies with focused responsibility for enforcement. The areas of enforcement within immigration vary from time to time, but enforcement is always important to the government.
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?
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
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.