Compliance Counseling & Defense
PROHIBITION AGAINST KNOWINGLY
EMPLOYING UNAUTHORIZED ALIENS
All U.S. employers are required to verify that
each person they employ is authorized
to work in the United States, either by verification of
their status as a U.S. citizen, permanent resident, employment authorized visa, or other employment
authorization document. This is a brief but important summary of the
provisions of the Immigration Reform and Control Act of 1986
("IRCA", or the "Act") which relate to employers. The
summary is not a treatise on the subject and may not cover
every aspect of IRCA, such as features applicable to a limited
number of employers. It is intended to provide general guidance
concerning the requirements of the law, but exceptions or different
requirements may apply depending upon individual circumstances.
Consult competent immigration counsel before proceeding with an I-9 program for your
Complaints about employing
illegal workers may prompt an investigation from the Department of
Labor or the U.S. Immigration & Customs Enforcement (ICE). An
employer can be fined and otherwise sanctioned for knowingly hiring
an undocumented worker or unknowingly hiring an undocumented worker
if a reasonable person would believe the employee was illegally
Every employer must complete a
Form I-9, for every employee, even if there is just one employee,
and even if the employer knows for certain that the employee is a
U.S. citizen. Companies employing true independent contractors are
not responsible for completing the I-9 forms for those workers.
Employers should consult a labor lawyer for a determination as to
whether an employee is truly an independent contractor, as the law
in this are is complex. If an employee provides information and
documents to the employer that, on their face, appear valid and
qualifying, the employer need not investigate further.
An employer should probe the
applicant further only if the documents are obvious forgeries, the
does not seem to match the employee, or has other solid information,
not rumors, that makes them believe they should ask more questions
of the employee.
It is a good idea to periodically perform an audit
of all of the company's I-9s to be sure they continue to comply
with the law. If ICE audits the employer, there can be stiff fines
for violation. I-9 forms are subject to inspection by the USCIS on
three days notice, without even a warrant or subpoena.
Here are some "do's" and
"don'ts" when going through the I-9 verification process.
The do's . . . .
- Prior to hire, or during an employee's
first day, give him or her a list of documents that can
used to verify status.
- Inquire about name changes and
require documentation to verify any change.
- Make sure the documents the employee
provides are on the lists of acceptable documents.
- Review documents for authenticity. Look
for any obvious signs of tampering or forgery.
- Reject a document only if it appears to be an obvious fake.
If it looks valid on its face and
is listed as a qualified document on the I-9,
an employer can accept it without further investigation.
- Make a photocopy of each document
submitted by the employee and keep them with the completed I-9
- Keep I-9s thought the duration of
employment, and for one year after an employee's employment ends.
Of course there are some big don'ts when it comes to the I-9
verification process. Employers must avoid discriminating against an employee
because of citizenship status or national origin through document
abuse, i.e., asking the employee for more documents than necessary
or different documents to prove employment eligibility, especially
if they look, or their name sounds foreign. Treat all employees
The don'ts . . . .
- Don't tell the employee which documents
- Don't tell the employee that the employer prefers a certain
document or documents.
- Don't reject a document unless it
is an obvious forgery or shows signs of tampering.
- Don't accept photocopies of any qualifying documents, or laminated
social security cards.
- Don't reject a document simply because it differs from what
is in the USCIS Handbook.
Employers are not required to be an expert on fraudulent documents,
but will be expected to use common sense.
U.S. Immigration & Customs Enforcement (ICE) audits I-9 compliance
and the U.S. Department of Labor (DOL) investigates employment compliance
through the Wage and Hour Division and the Office of Federal Contract
Compliance Program and as a part of their investigation. DOL can
also inspect I-9 verification files.
The U.S. Department of Labor does not have
authority to issue a Notice of Intent to Fine (NIF), but it can
they find to ICE for further action.
To avoid problems with employing foreign workers,
employers should consult a qualified immigration attorney,
who can train human resource personnel about proper I-9 compliance
If an employer is audited by ICE
for I-9 compliance:
Other don'ts . . . .
- Don't consent to an immediate inspection if an ICE agent show
up without notice;
employers have up to three days to respond. Call your attorney
- Don't let an ICE agent take original records; provide them with
- Don't allow ICE officers to talk with employees before you call
If U.S. Department of Labor or ICE agents
come for an audit without notice, decline their
If audited by DOS, they will notify the ICE, and the issues can
be dealt with after retaining immigration counsel.
If USCIS discovers technical errors on I-9s, the employer has 10 days
to correct them.
Only lawyers who routinely deal with
business immigration will be knowledgeable about employer compliance
issues. Firms dealing with both immigration and employment and labor
law can best handle compliance issues and any litigation arising
from either an ICE or DOL audit.____________________________________________________________________________________
IMMIGRATION REFORM & CONTROL ACT (IRCA)
Employers should take note of four requirements imposed by
1. Prohibition from knowing hiring,
recruiting for a fee, or referring for a fee an alien not
authorized to work in
the United States.
2. Prohibition of continuing the
employment of an employee, knowing that the employee has
become an unauthorized alien with respect to that employment.
3. Requires employers and recruiters
for a fee ("recruiter") and referrers for a fee ("referrers") to:
a. Verify BOTH the identity and the eligibility
of all individuals
hired, recruited or referred;
b. Fully and properly complete and sign an
INS Form I-9 with
respect to each of those individuals within three days of hire.
4. Prohibits discrimination on the basis of national
origin, citizenship, or "intending citizen" status.
Hiring, recruiting for a fee, or referring for
a fee, or continuing to employ an individual hired with actual
knowledge that the individual is not authorized to work is unlawful.
All employers, recruiters
and referrers are covered by the Act, regardless of the number of
employees they employ or refer.
There is no duty to make inquiry into the work
authorization except as required by the verification procedures
described below. Persons who come to the attention of the employer
as being unauthorized to work in the United States must be
terminated if the employer discovers by any means that the employee
is unauthorized, or if the employer knows or discovers that the
employee's previous work authorization has expired.
The U.S. Citizenship & Immigration Services
(USCIS) can investigate on its own initiative or on written complaint.
No advance notice is required and no search warrant is necessary to
the I-9 forms.
TO VERIFY BOTH
IDENTITY AND ELIGIBILITY FOR
Employers must verify the identity and
eligibility for employment of, and complete a Form I-9
for all employees, including those who are U.S.
citizens and who have been hired after
November 6, 1986.
This requirement pertains to ALL employees
hired, even those known to the employer to be U.S. Citizens.
one is exempt from the I-9 reporting requirement. All employers are
covered. The only exempt employees
are domestic workers in a
private home who work on a sporadic or intermittent basis.
Compliance with the verification requirements establishes a
rebuttable affirmative defense to a claim that the employer knowing
For self protection, the employer should make
photocopies of the documents ALL employees
give them as verification of work authorization and staple them
to the Forms I-9.
Verification is not required of job applicants,
but only of those actually hired. Forms I-9 are available from USCIS,
and can be reproduced in volume, without penalty, by photocopying,
or at a printer of the employer's choice. Employers may designate
agents, including outside parties, to perform the verification
process, however, they remain liable for any failure of an
agent to satisfy the requirements of the law.
THE FORMALITIES OF FORM I-9
For all employees hired after May 31, 1987,
Forms I-9 must be completed within three (3) business days of hire.
For purposes of the Act, "hire" means the actual commencement of
employment. At the option of the employer, verification may be
completed earlier, at the time of the job offer or an individual's
acceptance of employment. The employee must complete the "employee
Information and Verification" portion, and sign it in the proper
place, at the time of
Within three (3) business days of hire, the
employer must examine documentation presented by the employee
establishing identity and employment eligibility and complete the
"Employer Review and Verification" section
of Form I-9, signing
it in the proper place.
If an employee is hired for a duration of less
than three (3) business days, the employer must
complete Form I-9 before the end of the employee's first working
REQUIREMENT TO VERIFY IDENTITY AND
ELIGIBILITY FOR EMPLOYMENT PROCEDURES FOR VERIFICATION AND
COMPLETION OF FORM I-9
Individuals may present one document to
establish both (1) identity and (2) eligibility for employment, or
separate documents for each requirement. The employer, recruiter or
referrer must see the original documents. The requirement is not
satisfied by examining a copy or recording a recited document
number. (For example, if an employee uses Social Security card to
establish employment authorization, the employer must see the
original card. An employee's
knowledge of his or her Social Security number is insufficient.
If an individual is unable to
present the required documentation within the
three day period, the individual must present a receipt or receipts
reflecting his or her application for acceptable documentation
within three days
of hire and present the documents within twenty one (21) days of
There is no requirement under the statute that
an employer, recruiter or referrer make copies of the documentation
but is may copy the documents presented, even if they state on their
face that copying is unlawful. If copies are made, they must be kept
with the I-9 Forms, and any copied documentation should be kept in a
separate file, apart form personnel files. That way,
should USCIS agents come to inspect, the forms will be handy in one
WHICH ESTABLISH BOTH IDENTITY AND ELIGIBILITY
- 1. United States Passport
- 2. Certificate of United States Citizenship (Form
N-560 or N-561)
Certificate of Naturalization (Form N-550 or N-570)
- 4. Unexpired foreign passport which: Contains
an unexpired stamp which reads "Processed
for I-551. Temporary Evidence of Lawful Admission for permanent
residence. Valid until
_[date]_ employment authorized"; or has attached thereto a Form
I-94 (little white card)
bearing the same name as the passport and contains an employment
so long as the period of endorsement has not yet expired and the
not in conflict with any restrictions or limitations identified on
the Form I-94.
- 5. Alien Registration Receipt Card (Form I-151)
or Resident Alien Card (Form I-551)
(commonly called a "Green Card"), provided that it contains a
photograph of the bearer.
Note that "Green Cards" are not green. They may be white,
pink, or gold with holograms.
An employer should not accept the old green cards that have the
squiggly lines running
access them, as that version of the card is no longer acceptable
for identification. Presently,
most "Green Cards" have a 10-year expiration date. Employers
should make sure the card
Temporary Resident Card (Form I-688).
- 7. Employment Authorization Document (Form I-688-A).
DOCUMENTS WHICH ESTABLISH IDENTITY
- 1. State-issued driver's license or state-issued
identification card containing a photograph.
School identification card with a photograph.
- 3. Voter's registration card.
United States military card of draft record.
Identification card issued by federal, state or local government
Military dependent's identification card.
- 7. Native American tribal documents.
United States Coast Guard Merchant Mariner's Card
- 9. Driver's license issued by a Canadian government
DOCUMENTS WHICH ESTABLISH
EMPLOYMENT AUTHORIZATION ONLY
- 1. Social Security card, other than one which
has printed on its face "not valid for
employment purposes." Note: This must be a card issued by the
Administration; a facsimile such as a metal or plastic reproduction
is not acceptable.
- 2. An original or certified copy of a birth certificate
issued by a state, county, or
bearing an official seal.
Unexpired USCIS employment authorization.
- 4. Unexpired re-entry permit (INS Form I-327).
Unexpired Refugee Travel Document (INS Form I-571).
- 6. Certification of Birth Abroad issued by the
U.S. Department of State (Form DS-1350).
- 7. United States Citizen Identification Card
Native American tribal document.
- 9. Identification Card for use of Resident Citizen
of the United States (Form I-179).
RE-VERIFICATION OF EMPLOYMENT
If an individual's employment eligibility
expires, the employer must examine documents reflecting current
eligibility and update Form I-9 by noting the document number and
date on the form.
A "tickler" system should be established
for this purpose. Except where the presented employment
eligibility document expires, there is no
requirement to re-verify an individual's employment eligibility
if the employee is continuing his or her employment.
The identity and employment eligibility of a
"grand-fathered" employee need not be verified, and the status of an
employee whose status has been verified previously need not be
re-verified, if the employee is continuing his or her employment,
and at all times has a reasonable expectation
of employment. "Continuing employment" includes but is not limited
to situations where:
- a. The employee takes any temporary leave approved
by the employer, including but not
limited to paid or unpaid leave on account of study, illness or
disability of a family member,
illness or pregnancy,
maternity or paternity leave, vacation, or union business;
- b. The employee is promoted, demoted, or gets
a pay raise;
- c. The
employee is laid off for lack of work;
- d. The
employee is on strike or in a labor dispute;
- e. The
employee is reinstated after "wrongful termination";
- f. The
employee transfers from one distinct unit of the employer
to another unit (in this case the employer
may transfer the I-9 to
the receiving unit); or
- g. The
employee continues his or her employment with a "related,
or reorganized employer", including:
1. The same
employer at another location;
2. An employer who
continues to employ some or
a previous employer's work force in cases
involving a corporate reorganization, merger, or sale
of stock or assets; or
3. An employer who continues to
employ some or all of
employer's work force where both employers
to the same multi-employer association and
employees continue to work in the same bargaining
the same collective bargaining agreement. In these
the "related, successor, or reorganized employer"
must obtain and maintain the previous
records and Forms I-9.
FORMER EMPLOYEES, REFERRAL
OF PREVIOUSLY REFERRED
Where an employer hires a former employee
within three (3) years of the employee's initial completion of Form
I-9, the employer may inspect the previously completed Form I-9
in lieu of completing a new form. If, upon inspection, the employer
determines that the Form I-9 relates to he individual and that the
individual remains eligible for work, no new form need be completed.
If, upon inspection, the form I-9 reflects that the employment
eligibility documents initially presented have expired, the employer
must examine documentation reflecting current eligibility
and update the form I-9. The same rules apply to recruiters and
referrers for a fee. They may
inspect and, if necessary,
update the Form I-9 on file if the individual is referred again
three (3) years of the initial execution of the Form I-9.
There is no requirement to verify the status of
a bona fide independent contractor or their employees. An employer
using the services of an independent contractor (e.g., temporary
help service, construction subcontractor) is nor required to verify
the status of the contractor's employees. It violates the Act,
however, if the employer knows the contractor's employees
are unauthorized aliens. Whether an individual or entity is an independent
contractor or an
be determined on a case-by-case basis applying the traditional
"right of control" test, consistent with current Internal Revenue
Service guidelines. Be very careful about calling
employees "independent contractors".
Remember that a rose, is a rose, is a rose, but
calling a daisy a rose will not make it smell like a rose, nor will
it make it a rose. Prudent employers will consult competent
legal counsel before attempting to categorize any employee as an
independent contractor, whether for purposes of the I-9 form, or for
other tax purposes. There
can be severe
financial consequences for employers
who do not follow the law.
RETENTION OF I-9
FORMS FOR INSPECTION BY USCIS
Employers must retain the Form I-9 for three
(3) years or for one year after an individual's employment
terminates, whichever is longer. Recruiters and referrers for a fee
must retain Form I-9 for three (3) years after the date of referral.
The forms must be made available at the place where the request is
made, or if they are kept at another location, at the nearest
USCIS office to that location.
The penalty for violation of the record keeping
or retention requirements is $100 to $1,000 per individual for whom
the violation occurs. Remember, this applies to ALL employees,
suspected or clearly alien employees.
INDEMNITIES & BONDS
Requiring an individual to post a bond, to pay
or agree to pay any amount or to provide any financial guarantee
or indemnity against potential liability for hiring, recruiting,
the individual, is unlawful.
The penalty for violation of this provision is
$1,000 per violation, plus return of any amounts received.
The prohibition does not apply to agreements between contracting
parties containing performance clauses.
Employers should consider requiring independent contractors to represent
that they are in compliance with
IRCA as evidence that they are not knowingly obtaining the labor
of unauthorized aliens.
RECRUITERS AND REFERRERS FOR A
Recruiters and referrers for a fee (i.e.
employment agencies, etc.) must verify the status of, and complete
I-9 with respect to each individual referred to and hired
by an employer
after May 31, 1987. No verification is required for persons not
hired by an employer.
To "refer for a fee" means to send or direct a
person, documentation or information to another with the intent of
obtaining employment in the United States for the person for
remuneration, whether on a retainer or contingency basis. To
"recruit for a fee" means to solicit a person directly or indirectly
and refer that person to another with the intent of obtaining
employment for that
person, whether on a retainer or contingency basis.
Union hiring halls are not covered by this
requirement. Recruiters and referrers may designate agents to
complete the verification procedures on their behalf (including but
not limited to employers, notaries, or associations). If an employer
is designated as the agent, the employer need only provide the
recruiter or referrer with a photocopy of the Form I-9. Even if an
agent is designated, ultimate liability for compliance with the
statute remains with the recruiter or
IRCA prohibits discrimination on the basis of
national origin, and in the case of United States citizens or
intending citizens, on the basis of citizenship status. The
anti-discrimination provisions apply to employers with more than
three employees. IRCA contains no exemptions such as the private
club exemption contained in Title VII of the Civil Rights Act of
1964. The Act provides for penalties consisting of fines ranging to
$2,000 per offense, injunctive relief, reinstatement
with back pay, and attorney's fees.
Although IRCA provides that an employer may
prefer a citizen over an equally qualified non-citizen, the Equal
Employment Opportunity Commission (EEOC) has stated that such
violate Title VII. Therefore,
it would not be prudent for an
employer to rely on this preference provision of IRCA. In order to
avoid liability for discrimination, the verification requirements of
IRCA should be applied equally to all employees, and attempts to
verify the status of or adverse
action against individuals should be strictly limited to the requirements
imposed by IRCA.
Title VII and other civil rights acts remain
fully in effect, and EEOC has warned that IRCA may not be used as an
excuse to avoid hiring or otherwise discriminating against
who look or sound "foreign".
Although they may not know it,
U.S. employers serve as a sort of an agent for the U.S. Immigration
& Customs Enforcement (ICE), who is responsible for the
enforcement of U.S. immigration laws. In 1986, as a trade-off for
the Amnesty Program, which legalized millions of illegals, Congress
passed legislation making it unlawful for an employer to hire or
continue to employ undocumented aliens. As a part of the enforcement
program mandated by that law, USCIS created the Form I-9 and its
verification process, which requires employers to confirm the lawful
employment eligibility of all employees. Properly and timely completing an I-9 form for every employee
also provides employers with a good faith¯ defense if they hire someone who
later turns out to be working illegally in the United
Although not required by law, employers should in
the case of every employee, regardless of place of birth or
citizenship, make photocopies of I-9 qualifying documents, and place
them in each employee's personnel file.
Tips For Employer Compliance
By law, Form I-9 (Employment Eligibility Verification) must be
maintained by all employers. Every new hire, regardless of nationality,
ethnicity or origin, and whether a U.S. citizen or a foreign national,
must complete Section 1 on the first day of employment, attesting
to the individual's identity and employment eligibility.
Within the first three days of hire, employers must complete section
2 of the I-9 by examining original documents of identity and employment
authorization, recording the starting date of employment, noting
the document(s) number(s) on the form, and certifying by signing
under penalty of perjury that the documents examined appear to be
genuine and relate to the employee. Employers must not engage in
prohibited acts of discrimination against new hires and applicants
for employment, such as basing employment decisions on citizenship
or national origin status, or insisting that employees provide only
specific types of identity documents.
Prudent employers should follow the steps recommended below to
insure their compliance obligations under the immigration laws are
fulfilled. This is especially important in the post-Enron era when
Sarbanes-Oxley Act compliance and damage to reputation are of heightened
concern. The following checklist can serve as a starting point for
employer I-9 compliance:
1. As long as no formal enforcement
proceedings are pending or likely, employers should remove
from their files and discard original
I-9s no longer subject to the I-9 "retention rule" (I-9s may
destroyed after three years from
date of hire or one year from date of termination, whichever is
2. Employers should perform
voluntary audits of all or a representative sample of retained
to measure compliance practices;
3. As a measure of good faith
compliance and to mitigate potential fines, employers should
I-9s with errors and missing
information, keeping original I-9s and initialing changes with the
4. Establish a tickler system for
the timely "reverification" of employment eligibility for foreign
national employees who have
time-limited work permission.
5. Employers should take prompt
action if notified by the Social Security Administration that
between employer-provided records on specific workers and the
own data (the
so-called SSA "no-match letter"). An employer acts appropriately
in this situation
by checking the
employer's records, providing the employee an opportunity to seek
correction, or if unable
to verify and reconcile the discrepancy, considering (on advice of
counsel) whether termination of employment is required.
6. If numerous no-match letters are
received, employers should consider reverifying the entire
workforce but take precautions
to avoid unlawful immigration-related employment discrimination.
7. Employers should decide whether to:
- Copy or refrain from copying original documents of identity
and employment eligibility. Copying creates a paper trail making
it easier for the employer and the government to review
prior compliance actions, and for the employer to make
corrections to I-9s, if required. However, for large
companies, maintaining added paperwork is burdensome and
costly, and requires that employers act uniformly by copying
all original documents reviewed on all employees for I-9
purposes and keeping the copies with the
- Maintain I-9s in paper or electronic format.
Large employers should
consider whether to maintain required records in paper format or
use alternative technology. Immigration regulations now allow
electronic storage and electronic signatures for I-9s. While
using digital technology has its advantages in reducing paper
storage costs, the regulations pose added requirements for
assuring data integrity, facilitating audits and easing the
government's investigative burden.
Practices for Future Hires:
1. Set up a system for handling
future I-9s.Complete Section 1 of the I-9
first day of work for all new hires.
2. Complete the rest of the I-9 within three days of the first
day of work.
3. Consider pre-completing Employer's Business Name and Address
in Section 2
Employer Authorized Representative's Name and Title if it is
same person completing the Employer Certification.
4. Do not accept copies of work or identity documents.
5. Make sure all new hires complete I-9s in person before a company
(in order to confirm
identity) or an authorized agent (with respect to whom
employer must take full responsibility for any I-9 mistakes or
1. Engage in regular training for employees handling I-9 completion.
2. Establish an I-9 routine and follow it consistently for every
3. Create a system for tracking dates of hire and termination
in order to purge I-9s from current storage to minimize liability
actual or threatened government investigation exists or is likely).
4. Consider establishing policies (in consultation with employment
for future compliance and ongoing voluntary audits.
For more information about I-9 forms and compliance, see: http://www.inteconlaw.com/I-9_counseling.htm
CIVIL MONEY PENALTIES &
(The penalties described in this bulletin cover
offenses occurring on or after September 29, 1999)
The Department of Homeland Security, U.S. Immigration
& Customs Enforcement (ICE), is authorized to conduct investigations
to determine whether employers have violated the prohibitions against
knowingly employing unauthorized aliens and failing to properly
complete, present or retain the Employment Eligibility Verification
form (Form I-9) for newly hired individuals.
If ICE believes that violations have occurred,
ICE may issue 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 an 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
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.
Hiring or Continuing to Employ Unauthorized Aliens. An employer
found to have knowingly hired, recruited or referred for a fee,
or continued to employ, an unauthorized alien for employment in
the United States shall be subject to an order to cease and desist
from the unlawful behavior and to pay a civil fine.
An employer can be fined $250 - $2,000 per unauthorized
alien with respect to whom the First offense occurred before September
29, 1999, and not less than $275 and not exceeding $2,200, for each
unauthorized alien with respect to whom the offense occurred on
or after September 29, 1999. An employer can be fined from $2,000
to $5,000 per unauthorized alien for a Second offense that occurred
before September 29,1999, and between $2,200 and $5,500 if occurred
on or after September 29, 1999.
An employer can be fined from $3,000 to $10,000
per unauthorized alien for each Third or Subsequent offense that
occurred before September 29, 1999, and between $3,300 - $11,000
if occurred on or after September 29, 1999. These penalties are
not limited to employees for whom employers complete and retain
I-9 files, but also cover employers' use of contract personnel known
to them to be unauthorized to work in the United States.
If an employer can demonstrate compliance with
Form I-9 requirements, a good faith defense with respect to a charge
of knowingly hiring an unauthorized alien will have been established
unless the government can prove otherwise.
In determining the level of the money penalties
that will be imposed, a finding of more than one violation in the
course of a single proceeding or determination will be counted as
a single offense.
However, a single offense will include penalties
for each unauthorized alien who is determined to have been knowingly
hired, recruited, or referred for a fee. Failure to Comply with
Form I-9 Requirements Employers who fail to properly complete, retain,
and/or present Forms I-9 for inspection as required by law may be
subject to a civil penalty for violations occurring on or after
September 29, 1999 from $110 to $1,100 per employee whose Form I-9
is not properly completed, retained, and/or presented. For violations
occurring before September 29, 1999, civil penalties range from
$100 to $1,000.
In determining the amount of the civil penalty,
the following factors are considered: size of the business
of the employer being charged; the good faith of the employer; the
seriousness of the violation; whether or not the individual was
an unauthorized alien; and the history of previous violations of
Requiring Indemnification Employers found to
have required a bond or indemnity from an employee against liability
under the employer sanctions laws may be fined $1,000 for each violation
before September 29, 1999, and $1,100 per violation on or after
September 29, 1999, and ordered to make restitution to the person
required to pay the indemnity. If that person cannot be located,
payment is made to the U.S. Treasury.
Engaging in a Pattern or Practice of Knowingly
Hiring or Continuing to Employ Unauthorized Aliens
Employers convicted of having engaged in a pattern or practice of
knowingly hiring unauthorized aliens or continuing to employ aliens
knowing that they are or have become unauthorized to work in the
United States, after November 6, 1986, (e.g. expiration of work
authorization), may be fined up to $3,000 per unauthorized employee
and/or face up to 6 months of imprisonment.
Engaging in Fraud or False Statements, or Otherwise
Misusing Visas, Immigration Permits, and Identity Documents Persons
who knowingly use fraudulent identification documents, identity
documents that were issued to persons other than themselves, or
false attestations for the purpose of satisfying the employment
eligibility verification requirements, may be fined and/or imprisoned
for up to 5 years.
CIVIL DOCUMENT FRAUD
It is unlawful for any person or entity knowingly
to engage in any of the following activities:
Forge, counterfeit, alter, or falsely make
any document for the purpose of satisfying a
requirement of the Immigration and Nationality Act (INA) or
to obtain a benefit under the INA;
Use, attempt to use, posses, obtain, accept,
or receive or to provide any forged, counterfeit,
altered or falsely made document for the purpose of satisfying
a requirement of the INA or to
obtain a benefit under the INA;
Use or attempt to use or to provide or
attempt to provide any document lawfully issued to a
person other than the possessor, including a deceased individual
for the purpose of satisfying
a requirement of the INA or to obtain a benefit under the INA;
Accept or receive or to provide any document
lawfully issued to or with respect to a person
other than the possessor for the purpose of complying with the
employment eligibility verification requirements or obtaining
a benefit under the INA;
Prepare, file, or assist another in preparing
or filing, any application for benefits under the INA, or any
document required under the INA, or any document submitted in
connection with such application or document, with knowledge
or in reckless disregard of the fact that such application or
document was falsely made or, in whole or in part, does not
relate to the person on whose behalf it was or is being submitted;
Present before boarding a common carrier
for the purpose of coming to the United States a
document which relates to the alien's eligibility to enter the
United States, and to fail to present
such document to an immigration officer upon arrival at a United
States port of entry.
If an investigation reveals that an individual
has committed or participated in any of the acts listed above, the
U.S. Department of Homeland Security, U.S. Immigration and Customs
Enforcement may issue a Notice of Intent to Fine (NIF). Within 60
days of the NIF, the person or entity that receives the NIF may
make a written request for a hearing submitted to the appropriate
ICE office or face an unappealable Final Order to pay a civil penalty,
per fraudulent document or proscribed activity, in the amount of:
$250 - $2,000 or, if on or after September 29, 1999, $275 - $2,200,
for the first offense; and $2,000 - $5,000, or, if on or after September
29, 1999, $2,200 - $5,500, for each subsequent offense. For an individual
who is not a U.S. citizen, waiver of a 274C hearing will result
in the issuance of a final order and removal from the United States.
If an Office of Special Counsel for Unfair
Employment-Related Discrimination (OSC) or Equal Employment
Opportunity Commission (EEOC) investigation reveals employment
the Immigration and Nationality Act, the employer will be ordered
to cease the prohibited practice and may be ordered to take one
or more of the following steps:
Hire or reinstate, with or without back
pay, individuals directly injured
by the discrimination;
Lift any restrictions on an employee's assignments,
work shifts, or movements;
Post notices to employees about their rights
and about employers' obligations;
Educate all personnel involved in hiring
and in complying with the employer sanctions
and anti-discrimination laws;
Remove a false performance review or false
warning from an employee's personnel file.
Employers may also be ordered to pay civil monetary penalties of
$250 to $2,000 per individual discriminated against for the first
offense, $2,000 - $5,000 per individual discriminated against
for the second offense and $3,000 to $10,000
per individual discriminated against for subsequent
Where employers are found to have
requested more or different documents than an employee
has chosen to present from List A or Lists B and C, they may be
fined $100 to $1,000 for each
individual determined to have suffered such document abuse.
The Department of Justice, Civil
Rights Division, Office of Special Counsel for Immigration-Related
Unfair Employment Practices can be reached on an employer hotline
at (800) 255-8155 and on an
employee hotline at (800) 255-7688 or via web
Please see our Contact Page
for our email address.
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