Businesses Hiring Undocumented Workers: Is It Legal?

Businesses that hire illegal immigrants are breaking the law and can face serious consequences. In the US, it is illegal for any person or entity to hire, recruit, or refer for employment an individual without proper documentation or work authorization. This includes both direct hiring and the use of contractors or staffing agencies. Businesses found to be in violation of these laws can face civil and criminal penalties, including fines of up to $3000 per unauthorized worker and imprisonment for up to six months.

While criminal prosecutions against employers who knowingly hire undocumented workers are rare, there have been several notable cases where companies and individuals have been charged and convicted, resulting in fines and even prison sentences. To avoid legal issues, businesses must ensure that all employees complete the necessary paperwork, such as the I-9 Form, and verify the identity and work authorization of their employees.

Immigration and Customs Enforcement (ICE)

• Utilise unauthorised workers as a business model
• Mistreat their workers
• Engage in human smuggling or trafficking
• Engage in identity and benefit fraud
• Participate in other criminal conduct

ICE also prioritises investigations involving critical infrastructure, national security, and public safety. The agency has the authority to conduct Form I-9 inspections, issue civil fines, and debar businesses and individuals found to be in violation of immigration laws.

ICE's Homeland Security Investigations (HSI) division plays a key role in worksite enforcement. HSI investigates employers suspected of hiring illegal immigrants and can bring criminal charges against them. HSI also promotes the ICE Mutual Agreement between Government and Employers (IMAGE) outreach program, which is a voluntary partnership between the government and private sector to strengthen workforce integrity and curtail the employment of unauthorised workers.

The consequences for businesses found to be hiring illegal immigrants can be significant. They may face civil and criminal penalties, including fines of up to $3,000 per unauthorised worker and imprisonment for up to six months. Businesses may also lose their licenses and face negative impacts on their ongoing operations.

To comply with immigration laws, employers should ensure they properly verify the employment eligibility of all new hires using Form I-9. While employers are not expected to be experts in document verification, they should follow the I-9 procedures and accept documents that reasonably appear to be genuine. Implementing a formal I-9 compliance policy can demonstrate good faith efforts to comply with the law.

Civil and criminal penalties

In the United States, it is illegal for any person or entity to hire, recruit, or refer for a fee, an undocumented worker who does not have the legal right to be or remain in the country. This includes those who have crossed the border illegally or overstayed their temporary visas.

The Department of Homeland Security (HSI) and the U.S. Immigration and Customs Enforcement (ICE) have increased their efforts to detect and penalize immigration law violations at American workplaces. ICE is a federal law enforcement agency with regional offices across the country.

Civil Penalties

Civil penalties for hiring undocumented workers range from a minimum of $250 to $10,000 per unauthorized worker, depending on the number of times the employer has been found to have hired such employees. If the violation is only one of paperwork, the fine will be between $100 and $1,000 for each individual whose paperwork is not in compliance.

In determining the amount of the penalty, the Department of Homeland Security considers:

• The size of the business
• The seriousness of the violation
• Whether the individual was an unauthorized noncitizen
• The history of previous violations, if any

If an employer is found to have engaged in a "pattern and practice" of hiring undocumented workers, they can be fined up to $3,000 per employee.

Criminal Penalties

Criminal penalties for hiring undocumented workers include fines of up to $250,000 for an individual or $500,000 for the company. If convicted, an employer may also face up to five years in federal prison.

Criminal penalties require actual knowledge that the employees were not authorized to work in the United States. This means that the government must prove beyond a reasonable doubt that the employer knowingly hired unauthorized workers.

In addition to fines and imprisonment, businesses may also face the loss of their license or ability to continue operating if they are found to be in violation of immigration laws.

Employer knowledge

Employers are required to confirm the work authorization of every new hire at the time of hire, using Form I-9 for the purpose. This is a crucial step in the hiring process, as it helps businesses avoid legal repercussions and fines for non-compliance.

In the United States, it is illegal for a person or entity to hire, recruit, or refer for a fee anyone they know to be an unauthorized worker. This is outlined in Title 8 U.S.C. §1324a(a)(1)(A) and §1324a(2). Subsection 1324a(f) further states that any person or entity that engages in a pattern or practice of violations shall be fined up to $3000 for each unauthorized worker and/or imprisoned for up to six months.

To protect themselves, employers must ensure all new employees complete the I-9 Form. Routine audits and regular verification of employee identity and work authorization are also recommended. This includes verifying both employment authorization and identity documents, such as a US passport or Employment Authorization Document Card with a photograph.

While employers are not expected to be experts in detecting fraudulent documents, they are required to act in good faith and follow the I-9 procedures. However, if an employer has reason to know an employee might not be authorized to work, they should investigate further. This is because employers can be held liable for both actual and "constructive knowledge," which means having reason to know about the employee's unauthorized status.

In summary, employers must be vigilant in verifying the work authorization of their employees to avoid legal consequences. By following the I-9 Form process, conducting audits, and consulting attorneys when needed, businesses can protect themselves from hiring unauthorized workers.

E-Verify

While federal law does not mandate the use of E-Verify for non-federal employees, some states have mandated its use or similar programs, while others have discouraged it. As of January 1, 2023, the following states require E-Verify for some or all employers: Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, and West Virginia.

In addition, federal contractors or subcontractors that contain the Federal Acquisition Regulation (FAR) E-Verify clause are required to use E-Verify to determine the employment eligibility of employees performing direct and substantial work under federal contracts and new hires organization-wide.

Form I-9

In the United States, it is illegal for any person or entity to hire, recruit, or refer for a fee, an undocumented worker. This is enforced by Title 8 U.S.C §1324 a(a)(1)(A) which makes it unlawful for businesses to hire undocumented immigrants. Subsection 1324a(2) makes it unlawful for any person or entity to continue to employ that worker knowing that the worker is or has become unauthorized. Businesses found violating these laws may face criminal and civil penalties, including fines of up to $3000 for each unauthorized worker and/or imprisonment for up to six months.

To avoid such penalties, employers are encouraged to use Form I-9, Employment Eligibility Verification. Form I-9 is used to verify the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must properly complete Form I-9 for every individual they hire, including citizens and noncitizens. Both employees and employers (or authorized representatives of the employer) must complete the form. On the form, an employee must attest to their employment authorization and present their employer with acceptable documents as evidence of identity and employment authorization. The employer must then examine these documents to determine whether they reasonably appear to be genuine and related to the employee. The employer must then record this document information on the employee's Form I-9.

Page 2 of Form I-9 contains the Lists of Acceptable Documents that employers must provide to employees, either as a hard copy or as a hyperlink to this form. Employers are not required to retain this page with an employee's Form I-9. Page 3 contains Supplement A, Preparer and/or Translator Certification for Section 1. Employers must ensure that preparers or translators who assist an employee in completing Section 1 complete this page, then retain it with the employee's Form I-9. If the employee does not use a preparer or translator, employers do not need to print, provide, or retain this page.

Finally, Page 4 contains Supplement B, Reverification and Rehire (formerly Section 3). Employers must complete and retain this page when an employee requires reverification of their employment authorization or, in some cases, employment authorization document; or if the employer chooses to document a rehire. Employers do not need to print, provide, or retain this page with an employee's Form I-9 unless and until an employee requires reverification or the employer chooses to document a rehire.

Employers must ensure that employees have access to the Instructions for completing Form I-9, by providing them either a hard copy or a hyperlink. Employers must retain all completed pages of Form I-9 for a designated period and make them available for inspection by authorized government officers.

Frequently asked questions