EMPLOYMENT ALERT

WHAT HAPPENS IF YOU HIRE AN ILLEGAL IMMIGRANT?

In light of the immigration problems going on in Arizona, there is concern that the current Administration may step up its enforcement of the immigration statutes. Because of this concern, it is important that employers revisit their obligations under the Immigration Reform and Control Act of 1986 and other laws which prohibits the employment of unauthorized aliens.

Under the Immigration Reform and Control Act, an employer is prohibited from the “knowing employment” of illegal aliens. An affirmative burden is placed on the employer to verify the identity and employment eligibility of its employees by examining certain documents. An employer is only required to act in “good faith” in complying with the statute and is not under a duty to investigate its employees. An employer must show “good faith” compliance with the I-9 requirement and the documents an employee presents to prove employment eligibility. (I-9 is the Employment Eligibility Verification Form issued by the Department of Homeland Security). An employer may not demand more or different documents than an employee chooses to present provided that the documents are acceptable under the I-9 requirements. An employer can accept documents that reasonably appear to be genuine and relate to the person presenting them. Original documents must be produced—photocopies are not acceptable. Employees who cannot present reasonably genuine documents must be terminated.

There is a reverification requirement for employment eligibility. When an employee’s evidence of authorization has expired, for example, the employee’s driver’s license, new documents must be presented to reverify eligibility. The employee does not need to present the same documents for reverification. Any acceptable combination of documents under I-9 is acceptable. The reverification process does not apply to the U.S. passport or green card.

If an employer knowingly hires or retains an illegal immigrant, the financial penalties are progressive. The penalty for a first violation is a fine of not less than $275 and nor more than $2,200 for each unauthorized alien. A second violation is a fine of not less than $2,200 and not more than $5,500 per illegal alien. A subsequent violation is not less than $3,000 and not more than $10,000 per person. There is also criminal exposure for employers who engage in a pattern or practice of hiring illegal aliens.

If you have any questions or concerns about the immigration laws or the I-9 requirements, please contact M.J. Dobbs (mjdobbs@marcusbrodylaw.com) or Todd Sahner (tmsahner@marcusbrodylaw.com) at Marcus Brody Ford Kessler and Sahner.