Five Facts Employers Need to Know Before Hiring Undocumented Workers
Failure to verify an employee’s authorization to work in the United States can lead to serious legal issues. Knowing the basics of hiring undocumented workers is essential. Here are five facts that will help to avoid catastrophe:
Authorization is required.
Employers are required by law to verify that all employees are authorized to work in the United States. It is the duty of the employer, not the worker. Certain documents must be copied and kept on file, as well as submitted to the government.
Documented workers are treated differently.
An undocumented worker is simply someone who is not authorized to work in the United States. A domestic worker is someone employed to perform household tasks, such as a maid, nanny, gardener, or a sitter for an elderly family member. Either term could apply to the same person, but domestic workers need to be treated differently.
For domestic workers, an I-9 needs to be completed. Other employment laws may apply, as well. An exception might be made for those employed through an agency. If the worker is classified as an “independent contractor,” a 1099 must be issued.
Employers must fill out an I-9.
Employers must fill out this government form, known as an I-9, issued by the Department of Homeland Security (DHS)/United States Citizenship and Immigration Services (USCIS). However, the form is not filed with the government. After it is filled out, the employer must keep a copy, along with a copy of documents deemed acceptable by the USCIS, organized into three columns, or lists.
Items in List A or B establish identity. A United States passport, green card or an employment authorization card are in the first column. A U.S. state driver’s license, state ID, or school ID are included in the second column.
List C establishes the right to work. It includes a U.S. birth certificate or Social Security card with no restriction. When the government needs to verify that an employer has correctly verified the right of its workers to legally work in the U.S., the Immigrations & Custom Enforcement agency (“ICE”) will perform an audit.
Audits must be avoided.
Since the Obama administration, I-9 audits have increased dramatically. Under Trump, ICE has sent an unprecedent number of audits, also known as Notices of Inspection (“NOI”). Employers whose business model is based upon illegal employment face criminal prosecution. This includes crimes ranging from the unauthorized hiring of undocumented workers, harboring, tax evasion and money laundering to wage and hour violations.
Receiving an NOI means that your company is going to be inspected. A government visit is sometimes prompted by a tip-off from an angry employee or consumer. In that case, prepare your premises, not to mention your corporate records and I-9 verifications and business licenses.
Penalties will have a devastating impact.
Mistakes on the I-9 may invoke even larger civil penalties, ranging from $220 to $2,292 per violation. Employers are facing a devasting impact on their business. If discovered to have unauthorized workers during one of these audits, they will be given 10 days to terminate them. In some cases, employees concerned about their documentation, after hearing that an audit is coming, may simply not show up for work.
Companies with a large percentage of undocumented workers or a history of violations face the steepest penalties of all. In these cases, ICE typically considers the size of the business, good faith efforts to comply, the seriousness of the violation, whether the violation involved illegal workers and a history of previous violations. ICE will then issue a Notice of Intent to Fine, if violations are found.
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