What business owners need to know about immigration law

Penalties for Employers — Current Law

The Immigration and Naturalization Act, as amended by the Immigration Reform and Control Act (IRCA) of 1986, controls the entry of immigrants into the U.S. The IRCA governs the employment of aliens not lawfully admitted to the country. The IRCA also applies to all employers, regardless of the size of their business.

Illegal immigration concerns have resulted in congressional demands for increased enforcement measures to identify and deport illegal immigrants. Enforcement measures focus more on employers, since most illegal immigrants are drawn to the U.S. for jobs and some employers have taken advantage of unauthorized workers as a cheap labor supply.

Persons employing aliens not lawfully admitted to the U.S. are subject to substantial monetary fines and possible imprisonment. For a first offense, an employer is subject to a civil penalty not less than $250 and not more than $2,000 for each unauthorized alien. A second offense carries a civil penalty of not less than $2,000 and not more than $5,000 for each unauthorized alien.

After the second offense, the employer is subject to a civil penalty of not less than $3,000 and not more than $10,000 for each illegally employed worker. Multiple offenses also subject an employer to criminal penalties. An employer who engages in a pattern or practice of violating the law is subject to a criminal fine of not more than $3,000 for each unauthorized alien with respect to whom a violation occurs and/or imprisonment for not more than six months.

Recordkeeping is an important IRCA requirement. Employers must keep an individual’s I-9 Form for three years after hiring an individual, or one year after the date the individual’s employment is terminated, whichever is later.

Failure to keep proper records subjects an employer to a civil penalty of not less than $100 and not more than $1,000 for each individual with whom a violation occurred. Before the penalty is determined, consideration is given to the size of the employer’s business, the employer’s good faith, the seriousness of the violation, whether or not the individual was an unauthorized alien, and the employer’s history of prior violations.

Penalties upon conviction include criminal fines, imprisonment, and forfeiture of vehicles and real property used to commit the crime. Anyone employing or contracting with an illegal alien without verifying his or her work authorization status is guilty of a misdemeanor. Aliens and employers violating immigration laws are subject to arrest, detention, and seizure of their vehicles or property. In addition, individuals or entities who engage in racketeering enterprises that commit (or conspire to commit) immigration-related felonies are subject to private civil suits for treble damages and injunctive relief.

Penalties for Employers — Proposed Law

The financial penalties for not complying with the provisions of H.R.4437 are severely increased from the current $250.00 per violation to not less than $5,000.00 per violation and can go up to $50,000.00. There is no doubt that the Department of Homeland Security now has at its disposal the right to assess serious fines that can be used to assure an Employer’s compliance with the new law.

Section 8 USC 1324(a)(1)(A)(iv)(b)(iii)

"Any person who . . . encourages or induces an illegal alien to . . . reside . . . knowing or in reckless disregard of the fact that such . . . residence is . . . in violation of law, shall be punished as provided . . . for each illegal alien in respect to whom such a violation occurs . . . fined under title 18 . . . imprisoned not more than 5 years, or both."

Section 274 felonies under the federal Immigration and Nationality Act, INA 274A(a)(1)(A):

A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he:

• assists an illegal alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or
• encourages that illegal alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or
• knowingly assists illegal aliens due to personal convictions.

Do you know if your business is in full compliance with current immigration laws? If you’re not sure or if you have any questions about immigration law, please call us or fill out our contact form today to set up a free initial consultation.