Violation Litigation Defense
Law Offices of David D. Murray no longesr
offers employer's representation regarding I-9 defense, we provide this for your information:
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.
There can be severe penalties for noncompliance with immigration
ALL employees hired by an employer,
even those known to the employer to be U.S. Citizens must complete
a Form I-9. No one is exempt from
the I-9 reporting requirement - all employers, and all employees,
are covered. The only exemption is employees who 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 hired an
Verification is not required of job
applicants, but only of those actually hired. Forms I-9 are available
from the U.S. Citizenship & Immigration Services, 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.
In the 1990's, our firm successfully settled what
at that time was the largest employer sanction case in U.S. history
- $1,200,000.00 in employer violation penalties, which we were successful
in reducing to a fine of $150,000.00, payable $50,000.00 upon the
signing of the Settlement Agreement, and $100,000.00 payable over
twelve monthly installment payments.
This case was unusual in its facts and issues, as well as in the
tremendous fines that were originally levied by the government under
what was then a relatively new law. While we are proud of our success,
we do not believe it signifies that either we, or any law firm can
achieve the same type of remarkable results in other cases. Our
firm can, however, assure employers that we will handle their case
with the same zeal and enthusiasm that has been our approach with
all of our employer defense cases.
Our firm has the experience in dealing with U.S. Citizenship &
Immigration Services that is required for the representation of
employers for violations of immigration law.
EMPLOYER SANCTIONS FOR IMMIGRATION RELATED
CIVIL MONEY PENALTIES & CRIMINAL PENALTIES
(The penalties described in this bulletin cover offenses
occurring on or after September 29, 1999)
The Department of Homeland Security, U.S. Immigration and 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 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 not apealable
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 Alien(s) 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
- $5,000 per unauthorized alien for a Second offense that occurred
before September 29,1999, and between $2,200 - $5,500 if occurred
on or after September 29, 1999.
An employer can be fined from $3,000 - $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 - $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 the employer.
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
requirement of the Immigration and
Nationality Act (INA) or to obtain a benefit under
* Use, attempt to use, posses,
obtain, accept, or receive or to provide any forged,
altered or falsely made document for
the purpose of satisfying a requirement of the INA or
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
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
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
does not relate to the person on whose
behalf it was or is being submitted; or
* 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
present such document to an immigration
officer upon arrival at a United States port of
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 not apealable 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
If an Office of Special Counsel for Unfair Employment-Related Discrimination
(OSC) or Equal Employment Opportunity Commission (EEOC) investigation
reveals employment discrimination covered by 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
* Hire or reinstate, with or
without back pay, individuals directly injured by
* Lift any restrictions on an employee's assignments, work shifts,
* Post notices to employees about their rights and about employers'
* Educate all personnel involved in
hiring and in complying with the employer
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
for the second offense and $3,000 to $10,000 per individual
discriminated against for subsequent offenses.
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.
Please see our Contact Page
for our Email address.
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