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Christian G. A. Zeller, Esq.

The hiring and employment of unauthorized workers in the United States is illegal. U.S. law requires companies to employ only individuals who may legally work in the United States, such as U.S. citizens, or foreign citizens who have the necessary employment authorization. The Department of Homeland Security (DHS) has charged Immigration & Customs Enforcement (ICE) with the authority to investigate and prosecute the hiring, harboring, and employing of unauthorized workers. Non-compliance with these laws results in employer sanctions, including severe civil penalties and even criminal prosecution.

For example; depending on the date and type of offense, civil penalties for knowingly hiring or continuing to employ unauthorized workers range from $275.00 to $16,000.00 per worker, per violation. Criminal liability penalties that result from the prosecution of certain "knowingly hired violations," fraud, conspiracy, harboring/transporting illegal aliens, money laundering, RICO claims, etc., range from and have resulted in, hefty fines and prison sentences for both company principals and HR personnel.

The prospect of employment remains the strongest magnet that attracts foreign individuals to enter the U.S. illegally and to accept unauthorized employment. ICE's purpose of employer sanctions is to weaken this magnet by requiring employers to hire only individuals who may legally work in the U.S., without discriminating against individuals based on national origin or citizenship.

In an effort to remain in compliance with the worksite enforcement laws; specifically, Employment Eligibility Verification, every employer must verify the identity and employment authorization of each person they hire. Employers must complete a Form I-9 for each employee they hire within three days of hire, and they must properly store and maintain Form I-9 for each employee for three years, or one year after termination, whichever is longer.

Form I-9 is available at http://www.uscis.gov/files/form/i-9.pdf. Although on its face this one-page form appears simple, its simplicity is deceptive because it is fraught with pitfalls and proper completion requires knowledge of complex rules. It is no coincidence that the DHS published a 64-page manual with instructions how to complete a one-page form. The Handbook for Employers, Instructions for Completing Form I-9 (Employment Eligibility Verification Form) is available at http://www.uscis.gov/files/form/m-274.pdf.

To maintain compliance, many employers have signed on to E-Verify, which is an Internet-based system that allows employers to determine the eligibility of their employees to work in the United States. While participation in E-Verify will help an employer to assure that its workforce is authorized to work in the United States, E-Verify participation will not shield or exempt the employer from the responsibility to complete, retain, and make available for inspection Forms I-9 that relate to its employees, or from other requirements of applicable laws and regulations, including the obligations to comply with antidiscrimination requirements that relate to Form I-9 procedures.

While the mandatory and timely completion of Form I-9 for each worker, and possible participation in E-Verify, is a good start for an employer to achieve compliance, it is of utmost importance to properly train HR staff, to develop an internal compliance program, and to frequently audit for compliance. Typically, companies want to comply because poorly administered I-9 procedures can lead to costly business interruptions and result in civil penalties or criminal liability. It is only prudent to seek outside professional guidance for internal compliance audits, which should consist of (1) I-9 Audit, (2) Compliance Program Audit, (3) Antidiscrimination Audit, and (4) Liability Audit. A proactive approach to these complex requirements will only strengthen a company whereas complacency will bring with it the consequences of a reactive response to a worksite enforcement investigation.

For more information about employment eligibility verification, please contact a Tampa immigration attorney at our office today. We look forward to helping you.

Maney | Gordon | Zeller, P.A. - Tampa Immigration Lawyer
Located at 101 East Kennedy Boulevard, Suite 1700 Tampa, FL 33602. View Map
Phone: (800) 708-4399 | Local Phone: (813) 221-1366.