This is a serious issue; various government agencies have started to coordinate their efforts as they search for unauthorized workers. The smallest mistake in your paperwork or policies could lead to hefty fines and costly lawsuits. With the latest immigration crackdown under way, it’s crucial for you to make your I-9 administration run smoothly and in a legally safe way so you can stay in compliance.
In a BLR webinar titled “No-Match Letters, I-9s & E-Verify: How to Master HR’s Toughest New Immigration Challenges,” John Nahajzer outlined some of the legal issues employers need to be aware of before even starting the hiring process.
Federal Laws Pertaining to Immigration Enforcement
The Immigration Reform and Control Act of 1986 (IRCA) bars employers from hiring individuals, including illegal aliens, who are not legally entitled to work in the United States.
Nahajzer explained: “This law is what created the whole I-9 system . . . The process was set up to assist the government; to basically document that employees who were hired on or after November 6, 1986, are legally authorized to work in the United States.”
To be in compliance with immigration enforcement, employers must understand and follow their requirements under the law. They must:
- Verify that individuals are eligible to work by obtaining an Employment Eligibility Verification Form, known as Form I-9, and inspecting the required supporting documents at the time of hiring.
- Retain I-9 forms must for 3 years after the worker is hired or for 1 year after termination, whichever is longer.
- Not discriminate in hiring, firing, recruiting, or referring on the basis of national origin or citizenship status. It is also illegal to retaliate against an employee who has filed a discrimination charge.
The Immigration and Naturalization Act (INA), as amended by IRCA and all subsequent amendments, also prohibits employers from hiring illegal aliens. IRCA applies to all employers, including those that hire domestic help or farm laborers. Employers are required to verify that all employees hired after November 6, 1986, are legally entitled to work in the United States. The law also makes it illegal to discriminate in hiring and firing based on citizenship status or national origin.
State Laws Pertaining to Immigration Enforcement
IRCA provisions “pre-empt any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens” (8 USC Sec. 1324a(h)(2)). There is a pre-emption exception for state licensing and similar laws, but according to the legislative history of IRCA, the exemption applies only to laws where a license can be revoked if an employer has violated IRCA.
There are some state laws making the news in recent times. Nahajzer commented that “various states have enacted, or tried to enact, immigration laws and most of those are being challenged. It’s because of pre-emption: this notion that, in our constitution, federal laws (immigration is recognized as a federal issue) . . . should trump any conflicting state laws that might be out there.”
That said, a number of state and local governments have passed provisions intended to outlaw or discourage the employment of illegal aliens in their jurisdictions. Although IRCA’s pre-emption provision is broadly worded and likely supersedes many local attempts to regulate the hiring of undocumented individuals, statutes that impose sanctions through suspension and revocation of business licenses have been upheld. It is likely, however, that state laws aimed at regulating immigration will continue to be challenged in court by organizations that advocate for immigrants. At least one locality has already reversed direction and voted to take a local ban on hiring undocumented workers off the books because of the cost of enforcing the law, including defending it in court.
Attorney John Nahajzer is a managing shareholder at Maggio & Kattar, P.C., the largest boutique immigration law firm in Washington, D.C. He focuses his practice on corporate business immigration issues, representing clients of all sizes
It’s important to remember that it’s not just employers who can be held liable for immigration violations. A recent case involving the French Gourmet restaurant in San Diego settled, and one of the restaurant’s manager was put on three years probation and had to pay a $2500 fine.