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HR Matters

The 21st Century Employer and U.S. Immigration Laws - What is an Employer to Do?

June 7, 2006

The 21st Century Employer and U.S. Immigration Laws - What is an Employer to Do?

With increased news reports of raids on employers, demonstrations by undocumented workers, and debates on Capitol Hill, employers face serious questions about their hiring practices. Here are some common questions:

Employers and their attorneys have received many inquiries regarding federal immigration laws in large part due to the increased raids on employers, so what has really changed under the immigration laws?

  • Nothing has changed under the current law, but the Department of Immigration and Customs Enforcement ("ICE") has increased enforcement efforts in the last few months.

What is an undocumented worker?

  • An undocumented worker is a worker who does not have a valid visa to work in the United States. 
  • An undocumented worker can be a person who entered the U.S. illegally; who entered the U.S. as a visitor and unlawfully started working; or who had a valid visa to work which expired and was not renewed.

What does the current immigration law say about hiring undocumented workers?

  • It is illegal to knowingly hire, recruit, or continue to employ an undocumented worker.
  • It is also illegal to knowingly use a third party, such as a subcontractor, to obtain the services of an undocumented worker.

When is an employer considered to have "knowledge" of whether a worker is undocumented?

  • An employer is considered to have knowledge if the employer knows that the worker does not have a valid visa to work in the U.S.
  • An employer is also considered to have knowledge if a reasonable person would infer that the worker was undocumented. For example, knowledge could be inferred where the I-9 eligibility form is not properly completed or if the employer has learned from other sources that the worker is not authorized to work in the U.S.

What liability does an employer face when hiring a subcontractor to perform work and the subcontractor is using undocumented workers?

  • Any inquiry goes back to whether the employer has knowledge that the subcontractor is employing undocumented workers or that the workers are undocumented.
  • For example, the employer may be deemed to have knowledge if the subcontractor openly states that it employs undocumented workers, or if the subcontractor has previously been penalized for employing undocumented workers.
  • It is a good practice to do the following when retaining subcontractors: 
    • Review the contract with the subcontractor to determine who is responsible for hiring and employing the workers; 
    • Review the contract with the subcontractor to determine whether the terms require the contractor to abide by federal laws, including immigration laws; and
    • Review indemnity provisions in the contract with the subcontractor to determine who is liable in the case of illegal hiring or discrimination.  But note that indemnification provisions may not protect an employer from criminal sanctions.

Is an employer required to verify an employee's immigration status?

  • No. The only requirement is for the employer to obtain a properly completed I-9 form for each worker without knowledge of any false statements or documents.

What are the employment eligibility I-9 form requirements when hiring an employee?

  • Complete an I-9 for every individual hired within three days of employment.
  • Allow the worker to present his or her choice of eligible documents from the pre-approved options on the back of the I-9 form. 
  • Examine the documentation presented by the worker.
  • Keep copies of the documents presented by the worker and I-9 forms for three years after the hiring date or one year after the termination date, whichever is later.

What practices may expose me to liability in this area when hiring an employee?

  • When hiring an employee, do not:
    • Investigate beyond a facially valid document;
    • Question a worker's citizenship;
    • Refuse to hire the employee based on color of skin or accent;
    • Require that an employee provide a specific type of identification document, like a green card;
    • Discriminate against an employee on the basis of his or her national origin;
    • Employ a worker for well below the average pay rate for that occupation; or
    • Direct or advise a potential worker to obtain counterfeit documentation to obtain employment.

What are the penalties for violating the immigration laws?

  • An employer that knowingly hires, recruits, or continues to employ an undocumented worker faces:
    • Civil penalties, up to $3,000 for each undocumented worker violation;
    • Criminal penalties, including imprisonment for up to six months; and
    • Any other applicable federal law penalty, including temporary injunction or restraining order.
  • However, an employer that attempts to enforce the immigration laws without knowledge of the employee's immigration status and without involving its attorney and/or ICE, could face discrimination charges by that employee.

What should an employer do to help avoid violating the immigration laws?

  • Conduct internal audits of documents in order to re-verify a temporary employee's status on or before the date that the work authorization is due to expire.
  • Review hiring practices with human resources to ensure that the I-9 forms are being properly conducted and retained.
  • Review employment policies, especially those relating to equal employment, anti-discrimination practices, hiring practices, and re-verification of employees.
  • Review management training practices and orientation materials for discussion on immigration laws, discrimination laws, and the company's policies and practices. 
  • Review all contracts with subcontractors for standard hiring practices, liability and indemnification provisions.

When should I involve an attorney?

  • An attorney need not be involved for each specific hiring, but rather should be used as a resource for a more comprehensive review of the following:
    • hiring processes; 
    • employment practices and policies; 
    • orientation materials; 
    • audits; and 
    • contracts.
  • An attorney experienced in this area can provide confidential advice that is protected by the attorney-client privilege. 
  • Using an attorney to conduct an audit of employment files may protect the audit from disclosure under the attorney work product doctrine. 
  • Finally, an experienced attorney can assist in educating a company's management team regarding strategies for hiring, retaining, and firing employees, and what to do if management learns an employee's documentation is not valid.

Are there any changes in immigration laws currently being proposed?

  • Yes, as you may have heard in the news, there are currently two bills pending- one proposed by the House and one by the Senate - that would change an employer's role with respect to hiring, retaining, and enforcing immigration laws. 
  • In addition, President Bush has made his own recommendations. 
  • While it may be several months before any of the bills are reconciled, it is a good business practice to start preparing now for the upcoming changes in the law and in enforcement by reviewing your company's hiring practices, policies and practices, and contracts with subcontractors.

Contact Katherine M. Lasher or another Graydon Head & Ritchey LLP attorney for assistance in reviewing your employment practices.

This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.