Starting March 27, 2008, employers that violate immigration laws will face higher civil fines by as much as $5,000, according to U.S. Attorney General Michael B. Musakey and Homeland Security Secretary Michael Chertoff.
Under the Immigration and Nationality Act, employers are penalized for knowingly employing undocumented aliens and failing to comply with employment eligibility verification requirements. They are also liable for wrongful discrimination and immigration-related document fraud.
Each of these violations carries a corresponding civil fine or penalty in addition to criminal sanctions. The penalties were last adjusted for inflation in 1999.
Under the current readjustment, the minimum penalty for knowingly employing an undocumented alien will increase from $275 to $375. The maximum civil penalty for a first violation will increase from $2,200 to $3,200. The maximum fine for multiple violations will increase from $11,000 to $16,000.
Each of these fines is imposed on a per alien basis. Thus, if the employer hires five unauthorized aliens, he/she could be held liable for five times the imposable fine. The employer’s recourse is to request for a hearing for each of the violation before an administrative law judge in the Executive Office of Immigration Review (EOIR).
Worksite enforcement is a top priority of the Department of Homeland Security (DHS) and the Immigration and Customs Enforcement (ICE). ICE has stepped up inspections of employers resulting in 445 criminal charges against employers in the first ten months of fiscal year 2006.
In fiscal year 2007, ICE made 863 criminal arrests and 4,077 administrative arrests for a total of 4,940 arrests. DHS obtained more than $30 million in criminal fines, restitutions and civil judgments as a result of the heightened worksite enforcement.
ICE raids took place in over 26 states with a promise of being more vigorous in succeeding years. ICE conducted the largest worksite enforcement operation in 2006 that resulted in the apprehension of 1,187 unauthorized workers in a Houston-based company and criminal cases against the employers for criminal conspiracy to transport and harbor unlawful aliens for financial gain, as well as fraud and misuse of immigration documents in addition to the civil fines and penalties.
In the last several weeks, immigration raids have been conducted in New York, Texas, Arizona, California and Florida that resulted in charges of human trafficking and smuggling against employers and deportation against aliens.
In a recent case in Buffalo, New York, involving a landscape nursery, 34 illegal workers were apprehended, detained and voluntarily repatriated to Mexico within 24 hours. In Florida, ICE investigation discovered that local construction companies were utilizing an illegal money service business to pay illegal aliens for construction work.
Not only are civil monetary penalties being imposed but criminal cases against employers are meted for violating immigration laws, RICO, alien smuggling, harboring and money laundering statutes.
In view of these tougher penalties, the employers should review their internal hiring policies. They have to make sure that they comply with the I-9 employment eligibility verification requirements prior to hiring an individual. It is also timely to update the I-9 verifications of their current employees to make sure that they remain in compliance, especially if they hire employees who are on temporary working visas.
The employment eligibility verification process seeks to establish the identity and eligibility for employment of the prospective employee. The United States Citizenship and Immigration Services (USCIS) requires the employers to collect information, fill out the I-9 verification forms, report and maintain the records of their employees subject to USCIS/DHS and Department of Labor audits. Employment eligibility verification must be completed within three (3) business days of the date the employment begins and should be regularly updated.
When the employee can present any of the acceptable documents listed on the I-9 verification form by the USCIS, the employer must accept these, otherwise he/she might be charged with document abuse. Moreover, refusing to hire an individual presenting documents with unexpired dates because of his/her immigration status, nationality or citizenship may make the employer liable for unlawful discrimination.
By conducting a proper timely I-9 self-audit, the employers can prevent these problems.
Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at www.seguritan.com