The Immigration Reform and Control Act makes all U.S. employers responsible to verify the employment eligibility and identity of all employees hired to work in the United States after November 6, 1986. Employers are required to complete Employment Eligibility Verification forms (Form I-9) for all employees, including U.S. Citizens. Failure to comply permits the Federal government to issue extensive civil and criminal fines, sanctions and criminal prosecution.

The Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE) is authorized to conduct investigations to determine employer’s compliance and has recently been successful in linking noncompliance with criminal corporate RICO violations.

The Federal government may issue employer’s a Warning Notice, a Technical or Procedural Failures Letter notifying the employer of technical or procedural failures in need of correction, or a Notice of Intent to Fine (NIF). In cases where a NIF is issued, employers may request a hearing within 30 days of service of the NIF to contest the NIF before an Administrative Law Judge of the Office of the Chief Administrative Hearing Officer (OCAHO), Executive Office for Immigration Review, U.S. Department of Justice. Hearing requests must be in writing and filed with the ICE office designated in the NIF. If a hearing is not requested within the 30-day period, ICE will issue a Final Order to cease and desist and to pay a civil money penalty. Once a Final Order is issued, the penalty is unappealable. If a hearing is requested, ICE will file a complaint with OCAHO to begin the administrative hearing process which may end in settlement, dismissal, or a Final Order for civil money penalties.

Current Civil penalties for Employers determined to have knowingly hired persons unauthorized to work in the United States are as follows:

Employers who are convicted of having engaged in a pattern or practice of having engaged in a pattern or practice of knowingly hiring workers who are not authorized to work in the United States may face fines of up to $3,000 per employee and/or six month imprisonment.

According to the United States Department of Homeland Security Office of Immigration Statistics the United States government in the last fiscal year instituted 3,258 cases against employers suspected of engaging in the practice of employing workers unauthorized to work in the United States. Of these cases 159 criminal arrests were made and civil penalties of $486,313 were levied.

Congress is currently is in active discussions to increase the civil and criminal penalties for employers failing to comply with I-9 regulations. Under the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 penalties for failure to properly file I-9 forms, regardless of whether or not there is a violation of hiring an employee who is not authorized to work in the United States, will be a minimum of $1,000 and a maximum penalty of $25,000. The minimum penalty for employing a worker who does not have valid employment authorization will be $5,000 for each unauthorized worker for the first offense. Subsequent offenses will be subject to a penalty of $25,000 for each offense.

The proposed criminal penalties under the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 are fines ranging from $3,000 to $50,000 per offense and a minimum imprisonment of one year for the employer.

The statutory burdens placed on employers by the Federal Government can be overwhelming. The best practice is one of regular pre-emptive independent employer compliance audits by qualified immigration legal staff. This ensures a qualified human resources department proper record keeping and the security of an independent legal opinion. Teplen & Associates works with employers to ensure that they are in compliance with Federal laws. I-9 audits greatly minimize the liability of massive fines and possible criminal sanctions for failure to comply with Federal regulations.

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