|MICHAEL BAKER| ATTORNEYS AND COUNSELORS|
Unlawful Employment of Aliens -- Criminal Penalties
The Immigration Reform and Control Act (IRCA) of 1986 first created the provisions requiring all American Employers to verify and document that all of their employees have the legal right to work in the United States. In passing the so-called "Employer sanctions" provisions into law, Congress reasoned that this system will encourage legal immigration to the U.S. by helping to eliminate the magnet attracting illegal immigrants to enter the country in search of employment. With the enactment of the Immigration Act of 1990 , monetary civil penalties can be assessed by INS against an employer for failure to comply with these provisions, whether such failure is willful or negligent (except for certain specific instances, as will be explained later). In other words, ignorance of the law is no defense.
Unlawful Employment of Aliens -- Criminal Penalties
Title 8 U.S.C. § 1324a(a)(1)(A) makes it unlawful for any person or other entity to hire, recruit, or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien, as defined in subsection 1324a(h)(3).
Subsection 1324a(2) makes it unlawful for any person or entity, after hiring an alien for employment, to continue to employ the alien in the United States knowing the alien is or has become an unauthorized alien with respect to such employment.
Subsection 1324a(f) provides that any person or entity that engages in a "pattern or practice" of violations of subsection (a)(1)(A) or (a)(2) shall be fined not more than $3000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than six months for the entire pattern or practice, or both. The legislative history indicates that "a pattern or practice" of violations is to be given a commonsense rather than overly technical meaning, and must evidence regular, repeated and intentional activities, but does not include isolated, sporadic or accidental acts. H.R.Rep. No. 99-682, Part 3, 99th Cong., 2d Sess. (1986), p. 59. See 8 C.F.R. § 274a.1(k).A scheme for civil enforcement of the requirements of § 1324a through injunctions and monetary penalties is set forth in § 1324a(e) and § 1324a(f)(2).
In addition, 18 U.S.C. § 1546(b) makes it a felony offense to use a false identification document, or misuse a real one, for the purpose of satisfying the employment verification provisions in 8 U.S.C. § 1324a(b).
All employees, citizens and non citizens, hired after November 6, 1986, must complete Section 1 of Form I-9 at the time of hire, which is the actual beginning of employment. The employer is responsible for ensuring that Section 1 is timely and properly completed. For the purpose of completing Form I-9, the term "employee" includes those recruiters and referrers for a fee who are agricultural associations, agricultural employers, or farm labor contractors.
Make sure that each I-9 is completed fully and within 3 days. Make sure that each employee completes Section One of the I-9 on his or her first day. By the third day, each new hire must provide acceptable documentation showing identity and employment eligibility, and the employer must complete Section Two of the I-9.
Employers must complete Section 2 by examining evidence of identity and employment eligibility within three (3) business days of the date employment begins. If employees are authorized to work, but are unable to present the required document(s) within three business days, they must present a receipt for the application of the documents) within three business days and the actual document(s) within ninety (90) days. However, if employers hire individuals for a duration of less than three business days, Section 2 must be completed at the time employment begins.
Employers must record: 1) document title; 2) issuing authority; 3) document number, 4) expiration date, if any; and 5) the date employment begins. Employers must sign and date the certification. Employees must present original documents. Employers may, but are not required to, photocopy the document(s) presented. These photocopies may only be used for the verification process and must be retained with the I-9. However, employers are still responsible for completing the I-9.
Section 3 - Updating and Reverification. Employers must complete Section 3 when updating and/or reverifying the I-9. Employers must reverify employment eligibility of their employees on or before the expiration date recorded in Section 1. Employers CANNOT specify which document(s) they will accept from an employee.
If an employee 's name has changed at the time this form is being updated/reverified, complete Block A.
If an employee is rehired within three (3) years of the date this form was originally completed and the employee is still eligible to be employed on the same basis as previously indicated on this form (updating), complete Block B and the signature block.
If the employee is rehired within three (3) years of the date this form was originally completed and the employee's work authorization has expired or if a current employee's work authorization is about to expire (reverification), complete Block B and: examine any document that reflects that the employee is authorized to work in the U.S. (see List A or C), record the document title, document number and expiration date (if any) in Block C, and complete the signature block.
Photocopying and Retaining Form I-9. A blank I-9 may be reproduced provided both sides are copied. The Instructions must be available to all employees completing this form. Employers must retain completed I-9's for three (3) years after the date of hire or one (1) year after the date employment ends, whichever is later. The regulations require employers to keep the original I-9s or a microfiche copy of them. As a safeguard, you may photocopy all documents presented by an employee in support of an I-9, as is permitted, but not required, by INS regulations. If a supporting document turns out to be fraudulent, the photocopy will establish that the employer examined the document and that it appeared to be genuine on its face. Employers arenÕt expected to be documents experts. A photocopy shows the employer had no visual clues that the document was fake. Of course, you must examine original or certified documents when completing the I-9, not photocopies.
In the event of a government inspection, employers are entitled to three days notice to produce their I-9 forms. Store I-9's and supporting documents in files separate from your standard personnel files. In the case of an audit, this will make information retrieval easier and it will lessen the chance government agents will have to pore over confidential personnel information irrelevant to an I-9 audit.
Congress has imposed additional civil and criminal penalties for failure to comply with employment verification requirements and for fraudulent acts related to employment authorization documentation. Congress authorized the hiring of 300 additional investigators for I-9 compliance. The Act also imposes additional civil penalties for preparing, filing or assisting knowledge or in reckless disregard of the fact that such application or document was falsely made in whole, or in part, does not relate to the person on whose behalf it was or is being submitted." The fine for violation of this new provision is up to a maximum of $2,000 for each document and up to $5,000 for each document, if the individual was previously subject to a fine for a previous violation.
Congress, however, has also provided employers an opportunity to correct "technical or procedural" I-9 violations, on the condition that the deficiencies resulted from a "good faith" effort to comply with employment verification requirements. Commonly referred to as the Sonny Bono amendment, this provision provides that certain omissions or failures to adhere strictly to I-9 regulations by an employer will not result in an immediate fine, but rather the employer will be given notice of the "technical" violations and 10 days to cure the deficiencies.
The IIRAIRA provides new relief from civil liability for employers who are in "good faith compliance" with the Form I-9 paperwork violations. Under the new legislation, an employer who makes a good faith effort to satisfy the Form I-9 employment verification requirements is considered to have complied with the requirements "notwithstanding a technical or procedural failure" to meet one of the requirements. To demonstrate good faith compliance, an employer must voluntarily correct the failure, i.e., paperwork violations, within 10 business days after the failure has been pointed out and explained to the employer by the Immigration and Naturalization Service ("INS") or other enforcement agency such as the U.S. Department of Labor. If the INS determines that the employer has engaged in a pattern or practice of knowingly hiring unauthorized aliens, that employer is barred from claiming good faith compliance under the IIRAIRA. The good faith compliance provisions apply to Forms I-9 completed on or after September 30, 1996. If an employer fails to complete a Form I-9 for an employee, the good faith provisions do not apply as to the missing Forms I-9.
BIA Rules on "Good Moral Character". In re: Carmen Rocio Casas-Garcia.
A75 094 996-New York City. On September 28, 2000 a panel of the BIA (Grant, Guendelsberger, Thomas; opinion by Guendelsberger) held that falsely signing an I-9 does not bar one from showing good moral character for suspension of deportation and voluntary departure purposes. IJ denial of suspension reversed, granted.