Immigration Law and Employers
Print Issue: August 2013
U.S. EMPLOYERS HAVE witnessed an unprecedented surge in immigration enforcement at the worksite. In 2012, U.S. Immigration and Customs Enforcement (ICE), the agency charged with upholding immigration law, audited more than 3,000 companies compared with 250 audits in 2007. More than 238 company managers were arrested as a result. The total amount of fines in 2012 reached almost $13 million; up from $1 million in 2009.
Within the context of this environment, employers must be aware of the requirements of immigration law, the penalties for violations, and how to create a robust compliance program.
Types of Regulations
There are two key types of immigration regulations most commonly violated: Those stemming from the Immigration Reform and Control Act (IRCA or I-9), which introduced civil and criminal penalties against employers who hire unauthorized workers; and those related to the legal sponsorship of foreign workers for temporary or permanent employment work visas.
Failing to maintain adequate paperwork on employees can lead to substantial civil fines. Willfully disregarding a worker’s status or participating in document fraud can lead to criminal penalties.
The Immigration and Nationality Act makes it illegal to knowingly hire an illegal immigrant. The term “knowingly” is important because it includes having actual or constructive knowledge. Constructive knowledge is knowledge that may be inferred through certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition.
The IRCA requires employers to verify the employment eligibility of each employee working in the United States. By regulation, this verification is made via a document called Form I-9. On this form, the employer records the proof that the employee is allowed to work in the United States and attests that the employer has made an effort to verify this fact. The I-9 requirements apply to all U.S. employers and to all employees in the United States, with some very limited exceptions.
Under federal law, the I-9 must be retained and stored by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form is not sent to the government but must be available for inspection by authorized government agencies if requested.
There is also E-Verify, a program that dates back to 1997 (though the name has been used only since 2007). E-Verify is a federal program administered by the Department of Homeland Security (DHS). It is voluntary at the federal level, but 20 states had made it mandatory as of press time. Under the program, companies submit the I-9 and have that information verified against a federal database, which draws information from the Social Security Administration, to verify immigration status.
Civil fines for employing or continuing to employ illegal immigrants escalate dramatically, particularly for repeat offenders. For a first offense, the civil fines range from $275 to a maximum of $2,200 for each illegal immigrant. A second offense will cost the employer from $2,200 to a maximum of $5,500 per person. After two violations, the fines for all subsequent violations escalate to a minimum of $3,300 and a maximum of $11,000 for each employee.
In one example, the agency announced an action in March 2013 against an operations manager in a Texas company. The manager pled guilty to harboring and transporting illegal immigrants. The investigation of the company by ICE revealed that the manager had hired 19 illegal immigrants to work on a surveying project. The indictment alleged that neither the manager nor the company verified the immigration status of the employees or prepared the I-9 forms. The manager faces six months in prison and a $5,000 fine. The company has agreed to forfeit $250,000 in cash to settle the case and pay a $25,000 fine.
In addition, where certain types of immigration violations are found, the Department of Labor (DOL) may assess civil penalties ranging from $1,000 to $35,000 per violation, depending on the type and severity of the violation. The DOL may also impose other remedies—often where the highest dollar penalties are assessed.
In addition, employers found to have committed certain violations in the sponsoring of foreign workers with special skill-sets under the visa program known as H-1B may be precluded from future participation in that program, as well as from participation in other nonimmigrant and immigrant programs for a period of at least one year and as much as three years depending on the nature of the violation. This can have serious consequences for companies who need to employ key strategic employees on visas.
When employers understand their obligations under U.S. immigration laws, they can work to create and implement an effective immigration compliance program. Such a program is best implemented after conducting a thorough independent, external audit of the company’s compliance policies, procedures, and documents. Note that an audit conducted by outside counsel is preferable to an internal audit because it allows companies to prove an unbiased result subject to attorney-client privilege.
For businesses that cannot find U.S. workers with the needed skills, legal sponsorship of foreign nationals means following all the rules laid out by DHS and the DOL. A program for hiring legal immigrants must demonstrate a business need to place people with the right skillsets in the right locations at the right time. An employer must show that it could not attract the needed talent in the United States and instead required immigration sponsorship. Only by following the intricate rules can an employer facilitate the path to a temporary or permanent visa. Any immigration program must also ensure that the company is prepared for an immigration compliance audit by government agencies.
A compliance program should include, at a minimum, clear lines of authority, antidiscrimination policies, and a plan for maintaining paperwork, internal self-audits, and annual reviews.
Audits. After the initial third-party audit to establish a program baseline, companies should conduct periodic voluntary internal audits and provide training in immigration matters. The periodic audits should ensure that existing immigration policy is up to date and is being implemented correctly.
Lines of authority. A company’s program should establish clear lines of authority. Key individuals at the company should clearly understand who is responsible for compliance in all areas, and they should receive thorough training. Creating accountability can reduce or eliminate many errors.
Discrimination. With regard to all hiring, not just the sponsorship of foreign nationals, employers must not discriminate against applicants because of their accents, names, or appearance. Only job-related qualifications and skills should be considered.
Any kind of disparate treatment, if based on national origin or citizenship status, can be deemed discriminatory. Thus, a company cannot decide that an applicant “does not look like an American” and either not interview on that basis or ask only that person for proof of citizenship or legal residency.
A company must avoid demanding more or different documents from an employee if the employee has satisfied the documentary requirements of the form. Candidates should not be asked to prove their ability to work in the United States. Only after an offer is made and accepted should an employee be asked to complete an I-9. No other method should be used to determine an employee’s ability to work in the United States.
Documentation. Companies should develop comprehensive policies for dealing with paperwork or documentation, especially if it is kept electronically. The backbone of any immigration compliance program is developing clear policies and procedures for completing and maintaining appropriate documentation for all U.S. employees.
Employers should not be complacent about the risk of noncompliance with immigration employment laws. They must become proactive in auditing their records and establishing an immigration compliance program to avoid fines or criminal prosecutions.
Cynthia J. Lange, Esq., is a partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, in Santa Clara, California. She has worked with numerous companies to set up and manage worldwide immigration compliance programs.