The New Bite in Immigration Enforcement—it’s not Just for Undocumented Aliens
My practice is exclusively immigration law. Friends, family, and folks I meet when out and about invariably ask me if I see a lot of Hispanics. Immigration law is not just a matter for the millions of undocumented foreign nationals, many millions of whom are not Hispanic.
The mistake many business owners, employers, executives, managers, and supervisors make is to think immigration law does not affect them. Most business owners, executives, managers and supervisors will never file a visa application for a worker. But the mistake they make is assuming they do not need to worry about immigration laws.
Despite the focus on immigration in the news, a large number of companies fail to comply with the I-9 laws that have been in place since 1986. I-9’s are required of every employer for every employee. I-9’s have to be completed timely, correctly by both the employee and the employer, some employees need to have their I-9’s reviewed, every employer has to properly retain their I-9’s. Business owners, company officers, executives, managers and key employees are liable personally for civil and criminal penalties for I-9 related errors.
An estimated 5 percent of the U.S. work force is not eligible to be lawfully employed. Immigrations and Customs Enforcement (ICE) workplace arrests have soared 869 percent since 2002. With Congress unable to agree on immigration law changes, state governments are applying their own pressure. In 2007, 19 states enacted a total of 33 laws relating to immigration and employment issues, including worker verification by employers and contractors.
Why should you care? You should care because business owners, executives, managers and supervisors can be prosecuted for criminal (also known as “how good do you look in an orange jumpsuit?”) liability, in addition to company monetary penalties.
The Immigration Reform and Control Act of 1986 (“IRCA”) provides that every employer in the country is required to verify the identity and work authorization status of every employee of the business on an I-9 Employment Verification Form, that every worker must complete on the day of hire or earlier. Failure to comply with IRCA’s I-9 rules can result in significant fines, loss of access to government contracts and highly negative publicity for a company.
What penalties does an employer face for I-9 violations? Employers face stiff penalties for IRCA and I-9 violations substantial fines and debarment from government contracts. Penalties can be imposed for hiring unauthorized workers as well as simply for committing paperwork violations even if all workers are authorized to work. Fines for hiring unauthorized workers will amount to anywhere from $250 to $5,500 per worker depending on the prior history of violation. Employers can also be barred from competing for government contracts for a year if they knowingly hire or continue to employ unauthorized aliens. Paperwork violations can also result in significant fines. Each mistake or missing item on a form can result in a $100 penalty up to $1000 for each form. A missing I-9 Form would automatically be assessed at $1000. An employer, for example, that had 100 employees and did not complete I-9 Forms might face a $100,000 fine. IRCA investigators have considerable discretion in assessing fines and will look at factors like the size of the company, the seriousness of the violations, whether the employer was trying to comply in good faith and the pattern of past violations.
Employers should also be cautioned that knowingly accepting fraudulent documents from employees, or accepting them with “constructive knowledge”, is a different kind of violation that can be criminally prosecuted, including individual criminal liability for officers, executives, managers and supervisors, under other immigration laws.
Aside from federal violations, many states have passed or are considering passing laws that would penalize employers violating IRCA including barring such employers from state contracts and revoking their business licenses.
You are not familiar with ICE enforcement? Read some of my favorite quotes from Julie Myers, Department of Homeland Security Assistant Secretary for Immigration and Customs Enforcement (Director of ICE)
- “When we find those employers who don’t want to do the right thing, we’re going to target our criminal efforts and bring all the criminal statutes that we can to bear against them…”
- “We found that the fines were not an effective deterrent, employers treated them as part of the cost of doing business.”
- “It’s a much different landscape than it was a couple of years ago. This is causing employers to take notice and make sure they’re in compliance with the law.”
- “Drying up the job market for illegal workers would be the single most effective thing we could do to push back the tide of illegal aliens coming into the country,”
- “Worksite enforcement actions target a key component of the illicit support structure that enables illegal immigration to flourish. No employer, regardless of industry or location is immune from complying with the nation’s laws. ICE and our law enforcement partners will continue to bring all of our authorities to bear in this fight using criminal charges, asset seizures, administrative arrests and deportations.”
- “It used to be only administrative charges were brought and, often, the fine for hiring an illegal alien was lower than a traffic ticket, especially in the big cities,”
- “Just a small fine or a slap on the wrist is not a deterrent…we see more robust criminal cases…the prospect of 10 years in prison carries much sharper teeth than just a small fine.”
- “We will invest whatever time it takes to ensure that those who flout the law are brought to justice.”
- ”….individuals who have profited from hiring illegal aliens — and often exploiting them – we’re going after their houses, their Mercedes and any money that they have, as well.”
- “Try to compete with a company like that (companies that employ illegal workers with fake documents (referred to as “domestic off-shoring”) who has margins you couldn’t dream of…We want to make sure that all American businesses can operate on a level playing field.”
- “ICE has no tolerance for corporate officers who harbor illegal aliens for their work force. Today’s nationwide enforcement actions show how we will use all our investigative tools to bring these individuals to justice, no matter how large or small their company.”
- “This investigation clearly shows our resolve to pursue those who willfully violate our nation’s hiring laws, regardless of their place on the corporate ladder,” said Assistant Secretary Myers. “On television, criminal cases are wrapped up in an hour; but in real life, these investigations are complex and can take months, or even years, to build. We will invest whatever time it takes to ensure that those who flout the law are brought to justice.”
One of ICE’s more active special agents, Brian M. Moskowitz, reinforces his boss’ enforcement bite:
- “ICE’s priority is not to deport immigrant workers, but to stop employers who built their businesses on cheap immigrant labor.”
- “We want to send the message that your cost of business just went up because you risk your livelihood, your corporate reputation and your personal freedom.”
- “These are not crimes of passion. Nobody wakes up in the middle of the night and says, ‘I’m going to hire illegal aliens.’ These are people who have made a conscious decision that they can profit from this.”
So next time you think immigration law only affects undocumented foreign nationals, think about whether any immigration laws may impact you, your family, your neighbors, and whether they are up to speed on the new bite in immigration enforcement.
You can visit my I-9 website for everything you want to kjnow about I-9 employment eligibility and verification, and ICE worksite enforcment.
About the Author
I have been a licensed attorney for over 28 years and my practice is exclusively immigration law for individuals, families and businesses in North Carolina, the United States and throughout the world.
I have experience in state and local government, practicing law, owning and operating a business, working with public non-profit organizations, religious organizations, private corporations and political organizations.
IMMIGRATION ASSISTANCE CENTER INC.
