When it comes to immigration enforcement, no employer is immune from immigration scrutiny. An organization that ignores problems with its procedures designed to keep a legal workforce is risking ruinous fines and penalties. Employers have an obligation to hire workers who are legally authorized to work in the United States.
Even without the passage of immigration reform legislation, investigators are finding new ways to root out potential law violations. Surprisingly, in some instances, investigators have gotten around the requirement of giving employers 72 hours of notice that their I-9s are going to be inspected, in this fashion: when they show up on the scene, they don’t ask for the I-9s, therefore, the notice requirement isn’t triggered. Instead, they immediately begin interviewing employees and find out from them if your immigration documentation processes are lacking in any way. For these reasons and many more, employers need up-to-date, expert information to ensure they’re in compliance with the law.
In a BLR webinar titled "New I-9 Enforcement Focus: How to Keep Employee Files in Compliance," Hector A. Chichoni and Valentine A. Brown outlined some employer obligations when it comes to immigration enforcement. They also what penalties can be imposed if employers fail to meet those obligations.
Immigration Enforcement: Employer Obligations
What are your immigration enforcement obligations as an employer? What situations can create employer liability? Chichoni outlined the following tips:
- Only hire workers with authorization. "Failing to conduct this type of hiring practice will lead – as you know – to an investigation or an audit" Chichoni warned.
- Always review your I-9s and other documentation.
- Be aware of discrimination concerns, especially those related to citizenship status and document abuse. (Document abuse may include requiring some groups to produce specific documents, and refusing to hire them if they cannot.)
Immigration Enforcement: What Are the Employer Penalties for Non-Compliance?
What criminal and civil penalties do employers face if their immigration enforcement obligations are not met? Are there financial penalties for having incomplete I-9 forms?
There are several ways employers can run afoul of their immigration enforcement obligations:
- Knowingly hiring/employing a foreign national who is not work authorized.
- Continuing to employ an unauthorized foreign national once the employer has learned that he/she is not work authorized.
- Failure to complete (or to properly complete) the I-9 forms (including making false statements on the I-9 form).
What happens? What penalties can an employer face? The fines add up quickly. Fines for an unauthorized worker range from $275 – $16,000 per worker. Even paperwork violations can add up in a hurry at $110 to $1,100 for each I-9 form in violation.
The Other Side of Immigration Enforcement: Immigration-Related Discrimination
With such high potential penalties, it’s almost understandable that employers may have the instinct to steer clear of hiring immigrants at all. Obviously though, this would result in unlawful discrimination against such individuals. Chichoni explained that "there for four prohibited types of conduct under the Immigration and Nationality Act:"
- Citizenship status discrimination, such as treating someone differently because of their citizenship or having citizen-only policies
- National origin discrimination, which can manifest in several ways, such as English-only policies, refusing to hire based on national origin, or having a different hiring process based upon appearance
- Document abuse, which can take the form of requesting more or different documents than what is required for others
- Retaliation, such as terminating someone or refusing to hire someone over complaints of discrimination
Employers have to strike a balance by only hiring authorized workers while being careful not to turn away someone for the wrong reasons.
Attorney Hector A. Chichoni, a partner at Duane Morris LLP in Miami ( www.duanemorris.com), focuses his practice on U.S. and global immigration law. Mr. Chichoni represents employers in connection with I-9 compliance and work-site enforcement actions by U.S. Immigration and Customs Enforcement (ICE).
Attorney Valentine A. Brown, a partner at Duane Morris LLP in Philadelphia, serves as global immigration law counsel to a diverse group of multinational and domestic corporations and their employees, providing advice, compliance audits, and representation to help navigate the intricacies of U.S. and foreign immigration laws.