Hiring Illegal Immigrants is Against the Law

In the United States, hiring illegal immigrants is as the name implies, against the law. Not only is it against federal law for employers to hire illegal immigrants, it is also considered illegal to recruit or refer them for work in return for monetary compensation.

The passage of the Immigration Reform and Control Act of 1986 requires employers to ensure the completion and accuracy of an employee’s Form I-9 and the necessary documentation.  This process can help employers determine the eligibility of their employees to work within the United States, thereby hopefully avoiding breaking the law by hiring illegal immigrants.

Resources That Can Help Prevent Hiring Illegal Immigrants

With a company’s livelihood and profit margin on the line, being Form I-9 compliant is not a luxury, it is a must.  Although the Form I-9 is mandatory, some additional resources such as the E-Verify system and digital I-9 compliance software exist to help companies stay compliant and avoid the hiring of illegal immigrants.

The Form I-9

The Form I-9 is required by law to be completed by employees and verified by employers and is the first line of defense in hiring only those eligible to work in the U.S.  This one-page document contains three main sections.

Section one of the Form I-9 is primarily the employee’s responsibility. The individual must complete the form in its entirety by their first day of employment. By signing the form, they are attesting that the information within is truthful and accurate. It is the employer’s responsibility to ensure employees complete the Form I-9 correctly.

Section two of the Form I-9 pertains to employer review and verification. Employees are responsible for providing their employer with required Form I-9 documents, and employers will then verify those documents with good faith regarding their authenticity. Employers must complete this section within three business days of an employee’s first day of work.

Section three of the Form I-9 deals with rehires, reverification and name changes. This section can be completed if an employee’s name is legally changed, his/her work authorization has expired, or if the employee is rehired within three years of the date on the Form I-9.

E-Verify

A program that is often used, and in some states mandated, in conjunction with the Form I-9 is E-Verify.  It is a free, web-based system that enables employers to electronically match an employee’s Form I-9 information with records that are accessible by the Department of Homeland Security and the Social Security Administration.

Frequently, E-Verify is able to provide work authorization for employees in roughly twenty-four hours or less. There are some instances in which a manual review of records in the government database may take longer than twenty-four hours to process. In these cases, the E-Verify system will alert employers of these circumstances and will at some point follow up with the end result. On occasion, there may not be an exact match in E-Verify, at which point the system generally provides guidance to employers on how to proceed with the employee in question.

To use the E-Verify system, an employer must be officially enrolled. For the most part, enrollment in the program is voluntary, however the following cases are generally an exception to this rule:

  • Enrollment required by state law
  • Participation in federal contracts or subcontracts that include the Federal Acquisition Regulation (FAR) E-Verify clause
  • Consequence of a legal ruling

Digital I-9 Compliance Software

Another resource companies are using to complement the Form I-9 process is digital I-9 compliance software. The goal of this software is to help minimize errors on the Form I-9, which is- something that happens a lot with paper I-9 forms.

The other bonus of digital I-9 compliance software is that it is considered to be both user-friendly and intuitive. Most of these software programs help prepare employees and employers in completing the Form I-9, provide time-sensitive action item reminders, track expired Form I-9 documents, archive documents, centralize compliance reporting, and assist with audits.

The aspect of the Form I-9 process that employers are often most apprehensive about is verifying and authenticating the required Form I-9 documents. Because employers are generally not experts on being able to spot a fraudulent document, they can feel added pressure for this responsibility. Since employers are not allowed to ask for particular documents that they are familiar with, it can be a challenge. Employers must simply do the best of their ability and act in good faith when it comes to checking documents’ general validity, which often translates to checking social security numbers.

If even after all of the above, a company is found not to be in I-9 compliance, their efforts to be thorough and transparent in the I-9 compliance process can help with liability issues in the event of an ICE audit.

However, if at any time after the hire of an employee, a company discovers evidence that could suggest that an employee might not be authorized to work in the U.S., the company is obliged to look into it.

Consequences of Hiring Illegal Immigrants

Whether a company is audited or not, it is the law to be I-9 compliant. While some ICE investigations may give employers a day or two notice, some do not give advance notice.  For this reason, companies should ensure that they are consistent in being I-9 compliant at all times.

Hiring illegal immigrants can cause a company to be found not in compliance, and the company may be issued penalties for violations. These violations generally fall under the category of criminal and civil.

Criminal violations generally include actions such as an intentional pattern of violating law via fee-based recruiting, hiring, and referring of individuals that are not eligible to work in the U.S. Criminal violations are generally issued on an employee by employee basis and can add up quickly.

Civil violations generally include penalties for actions such as document fraud and incomplete employment verification or follow up. These violations are also usually issued on an employee by employee basis.

Whether a company is issued a criminal or civil violation, penalties can be expensive, and if issued for many different employees within one company, it can negatively affect the bottom line by costing a company thousands of dollars or more. In some cases, violations can result in the immediate loss of part of their workforce if they are found not to be eligible to work in the U.S. This may also significantly impact a company’s profit margin and ability to do business. Another possible result of violations can be a company’s loss of its business license.

While there may be some differentiation between the penalties and fines issued to first, second, and third (or more frequent) offenders, the bottom line is that hiring illegal immigrants can result in serious and expensive fines, a loss of work force, a loss of business license, or even a combination of these.

The best way to stay I-9 compliant is to use all the resources at your disposal and be diligent in avoiding hiring illegal immigrants.

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