Employer Penalties and Fines

Until a few years ago, an employer in the U.S. who hired a foreign worker could not be fined or penalized even if the employee was not authorized to work. This all changed when the Immigration Reform and Control Act of 1986 (IRCA) became effective. Since then even if an employer has hired only authorized workers, the employer can still be fined and penalized if the required forms are not properly maintained or if the employer wrongfully refused to hire an authorized worker.

Here are a few questions and answers about some of the general provisions of the Employer Sanctions law. (In individual cases, an attorney experienced in immigration matters should be consulted)

Q. We hire only U.S. citizens or people with "green cards", do we have to keep any special records?

A. Yes. The basic paper is Form I-9. This is a Bureau of Citizenship and Immigration Services (BCIS) form. An I-9 must be filled out and kept for every person hired on or after November 6, 1986. The back of the form lists the types of documents that an employer can request to determine if a person is authorized to work.

Q. Do we have to keep the I-9 on file?

A. Yes. An I-9 must be kept for all workers until one year after the worker has been terminated or until 3 years after the person was hired, whichever is later.

Q. An applicant says he does not have a U.S. birth certificate or a green card but that he has other papers. Can we refuse to hire the person?

A. The employer must look at the other papers to see if they prove identity and work authorization. An employer cannot ask to see only a U.S. birth certificate or a green card. An applicant may show any of the documents listed on the I-9 form. Some of the documents prove both identity and authorization to work in which case only the one document is needed. With others, the employer needs to see two documents.

Q. What are some of these documents?

A. A valid U.S. passport, a Naturalization (citizenship) Certificate, or a valid Alien Registration Card (green card) with photo can be used alone to comply with the I-9 form since these prove both identity and the authorization to work. To prove identity, a person could use a valid U.S. state drivers license or ID card with photo, an identity card issued by a U.S. government agency, a school ID, a Canadian drivers license are examples of acceptable identity documents.

Q. If the person shows one of the identity documents, does the employer need anything more?

A. Yes. The employer must also see proof of authorization to work such as a U.S. Social Security card (a Social Security card that says "Not Valid for Employment" is not acceptable), a birth certificate showing birth in the U.S. or a valid Immigration document showing work authorization such as an employment authorization card or an H-1 or other working visa approval notice.

Q. If we see the identity and BCIS work authorization card, can we also ask for a green card to be sure?

A. No. The employer cannot require more than the minimum needed to comply with the I-9 form. The employer cannot specify which documents it wants to see.

Q. An applicant shows a BCIS employment authorization card that will expire in three months. The job is permanent. Can we refuse to hire the applicant?

A. No. An employer may not refuse to hire because work authorization will expire in the future.

Q. What happens if the employer does not keep the I-9 forms or asks for specific documents?

A. The Law provides for penalties from $100 to $1,000 for each incorrect or missing I-9 and other fines for demanding specific documents. The amount of the fine will depend on whether the employer made a genuine error, if the workers were authorized to work, if there were repeated violations or warnings and other factors. Q. Are there other parts of the law in addition to the I-9 rules?

A. Yes. There are anti-discrimination rules. An employer could be fined or penalized for failing to hire an authorized worker for discriminatory reasons, for demanding specific documents, for asking to see more than the minimum documents, and for other reasons. The Office of Special Counsel has caused employers to pay a total of over $1 million in back-pay to workers, has required employers to rehire workers, and has levied fines totaling hundreds of thousands of dollars.

We have discussed only some of the IRCA requirements. An employer must keep proper paperwork and comply with the rules even if he hires his own children. The law is very specific and unforgiving. Not long ago, the BCIS accused Disneyland in California of having over a thousand paperwork violations. The BCIS issued a notice to fine Disneyland $395,000. Earlier, the BCIS issued a notice to fine a Georgia packing company over $1 million dollars for various violations including the smuggling of undocumented aliens into the U.S.

It is wise for any employer hiring in the U.S. to become familiar with the immigration requirements and to get good legal advice to avoid heavy fines, penalties and, in repeated cases, criminal charges.

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© Richard Madison 2003

Law Office of Richard Madison