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Consequences Of Hiring Illegal Workers

The hiring process can often be fraught with complications for employers: not being able to find qualified applicants, managers asking illegal questions during the interview process, a new employee not living up to your expectations. One potential problem that isn’t always top of mind for employers (but definitely should be) is the possibility that a potential candidate isn’t legally eligible to work for your company.

Here’s a little history for you: The Immigration Reform and Control Act (IRCA) took effect in 1986 to prevent the employment of illegal aliens in the United States. IRCA requires employers to hire and retain only individuals authorized to work in the United States, and imposes strict penalties on those that knowingly employ illegal aliens. To enforce these guidelines, IRCA requires employers to verify a potential employee’s eligibility to work in the United States by completing the Employment Eligibility Verification Form (Form I-9). By completing Form I-9, the employer is certifying that it has viewed documents proving that the potential employee is authorized to live and work in the United States.

If an employer becomes aware or has a reason to suspect that an employee is unauthorized to work in the United States, they should take the matter very seriously. Under IRCA, employers can be fined for not complying with Form I-9 guidelines, accepting fraudulent documents when determining employment eligibility or discriminating against individuals based on their nation of origin or citizenship status. Fines range from $110 to several thousand dollars, depending on the offense and the frequency of offenses. And, as one Houston-based business found out the hard way, being found guilty of “knowingly and repeatedly” hiring immigrants who didn’t have permits to work in the US can even result in arrests.

According to an article published by the Houston Chronicle, the owners and two other employees of Houston tortilla factory La Espiga de Oro were recently arrested and now face federal charges that they were part of a “conspiracy to harbor people illegally in the United States and that they continued to hire them.”

These arrests are part of years-long investigation dating back to 2008 when, according to the report documents, the Homeland Security Investigations Workforce Enforcement Group received a tip line report alleging that the factory was “knowingly hiring people who lacked legal permission to be in the United States.” The investigation was extensive, and included government informants posing as “unauthorized aliens” who were hired by the company, despite having told the managers that they didn’t have the proper documents needed to be eligible for employment in the US. The informants conducted surveillance on the company while on the job, including making recordings of conversations. One such alleged recording includes a conversation the defendants had “discussing how to get around the system by using fraudulent documents, such as counterfeit Social Security cards,” according to the Houston Chronicle article.

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Practical Strategies For Employers

So what can employers do to protect themselves against fines and possible arrest? We’ve outlined a few practical strategies below that will help make sure you are hiring and retaining employees who are authorized to work in the US:

  • Make filling out Form I-9 part of every employee’s first day on the job. If an employee is not able to provide the proper documentation to complete the form within three days, the employee must provide an acceptable receipt indicating that he or she has applied for an authorizing document, and the employer should retain this receipt for its records. From that point on, the employee generally has 90 days to provide the actual document to fully complete the form.
  • Complete Form I-9 with an employee once he or she is officially hired, not before an offer is accepted. This will help to avoid excess paperwork for applicants that do not make the cut and, more importantly, will help companies avoid claims that work-authorized individuals were not hired based on age, citizenship status, immigration status or national origin.
  • When completing Form I-9, employers must:
    • Physically examine each original document the employee presents to determine if it reasonably appears to be genuine and to relate to the person presenting it. The person who examines the documents must be the same person who signs Section 2 of the Form I-9. The examiner of documents and the employee must both be physically present during the examination.
    • Record the verification document title from List A or record one verification document from List B and one from List C.
    • Record the name of the issuer of the document (example: Social Security Administration).
    • Record the document identification number and the expiration date (if applicable).
    • Record the employee’s employment start date.
    • Sign and date under the certification section and also provide the signer’s job title, the name of the business and its address.
    • Return the employee’s documentation. Employers may, but are not required to, photocopy the document(s) presented. If photocopies are made, they should be made for all new hires or re-verifications. The photocopies should be retained with the Form I-9.
  • If an employee’s authorizing document expires, the employer must re-verify the employee’s employment eligibility before or on the expiration date. To keep information current, employers should fill in Section 3 of Form I-9 or use a new form if Section 3 is already completed. If there is a more current version of the Form I-9 at the time of re-verification, Section 3 of the current version must be completed. If the employee is unable to produce documentation outlining that he or she can remain working, then that employee cannot remain employed. Employers may not re-verify an expired U.S. passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card (Form I-551), or a List B document that has expired.
  • Design a reminder system for the company so that employees with only a receipt are not forgotten and authorization documents do not expire without notice.
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For more information on the Form 1-9, visit www.uscis.gov/i-9.

Conclusion

As evidenced by the case of La Espiga de Oro, the US government has greatly increased workplace investigations, exposing more employers to penalties for noncompliance and making it more important than ever to take compliance seriously. It is important to conduct internal audits regularly to ensure your business is complying with the law. You may also want to consider consulting an attorney to review your procedures and forms to be as prepared as possible in the event of an audit.

G&A Partners, a leader in the HR outsourcing and professional employer organization (PEO) industries, offers a lifeline to businesses by delivering both strategic as well as tactical HR and administrative support. Our experienced human resource professionals study the nuances of federal and state labor laws so they can help companies understand and expertly execute procedural tasks surrounding government compliance, including processing new hire paperwork like Form I-9. With G&A Partners managing your HR labor law and HR compliance, you can rest assured that your employees are afforded the protection of federal laws, and that you are protected from the risk of human resources noncompliance.

Learn how G&A Partners can help you protect your business and employees through HR labor law and compliance services. Contact us by phone at 1-800-253-8562 to speak with an expert or visit https://www.gnapartners.com/contact-us/ to schedule a business consultation.

This article is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.

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