The Immigration and Nationality Act (INA) places a burden on employers to verify the legal status of a prospective employee and to ensure that unauthorized aliens are not hired. Under Section 274A(b), an employee must state whether they are eligible to work in the United States and the employer must verify this information on the I-9 Form. The employer must then obtain documentation from the employee verifying the employee’s authorization to work in the United States and must examine these documents within three business days of hiring.
Such documentation must establish both employment authorization and identity, either in a single document (such as a United States passport, certificate of U.S. citizenship, certificate of naturalization, a valid foreign passport with either a stamp evidencing the person has been processed for an I-551 or an I-94 form which shows the person has the right to be employed in the United States, a green card, a temporary residence card, or an employment authorization card) or in separate documents such as a driver’s license to establish identity and a social security card or U.S. Department of State issued birth certificate to establish work authorization. After examining these documents, the employer must complete the portion of the I-9 certifying that the documents have been examined and that the employee appears to be authorized to work in the United States. The I-9 must be retained for three years after the date of hire or one year after the date of termination, whichever is later, and must be maintained for all employees, alien or non-alien.
The INA, Section 274A(a)( 8 U.S.C. 1324a) makes it unlawful to employ an alien in the United States knowing the alien is unauthorized. It is also unlawful under the statute to continue employment of an unauthorized alien in the United States. A valid defense is compliance in good faith under Section 274A(b). The government must establish that the employer had actual knowledge that the alien was unauthorized to work, and so negligence or gross negligence standards would not apply. If an employer complied with the I-9 verification requirements in good faith, this is a rebuttable affirmative defense. An employer has a right to an administrative hearing before an administrative law judge where the government must prove its case on a preponderance of the evidence standard. An employer may also appeal a decision by the administrative law judge to the court of appeals. Penalties
Violations of Section 274A(a) can be met with civil as well as criminal penalties. If an administrative law judge finds based on the preponderance of the evidence that an employer has violated Section 274A(a), a cease and desist order will be served contained civil monetary penalties.
Under Section 274(e)(4), such an order will require an employer to cease and desist all unlawful hiring activities and to pay a civil penalty of $375 to $3,200 for each alien hired in violation of the INA. If a second offense occurs, another order can be issued with a fine of $3,200 to $6,500 per unauthorized alien hired. Additional violations are fined $4,300 to $16,000 per unauthorized alien. These penalties are lower if the offenses occurred before March 27, 2008 (First offense, $275 to $2,200, second offense $2,200 to $5,500, additional offenses $3,300 to $11,000).
Criminal penalties can be faced under 274A(10) if a pattern or practice of violations is found. A pattern or practice is defined as “regular, repeated, and intentional activities, but does not include isolated, sporadic, or accidental acts.” Such a violation may result in a $3,000 fine and/or up to 6 months in jail.
The Supreme Court has held that there is not a reasonable expectation of privacy of records, files, or documents that may be inspected under statutes and regulations.# The 4th Circuit specifically addressed this issue in regards to immigration, where an alien employee provided false documentation to the employer regarding her authorization to work. The Court of Appeals held that there was no right of privacy in regards to such documents, pointing out that “the rationale for the employer's collection of these immigration records is compliance with INS requirements and for INS inspection”.# As such, an employer’s I-9 and supporting documents are subject to auditing and inspection by Immigration and Customs Enforcement, and refusal to comply with such an audit will open an employer up to a warning citation.