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The Immigration Reform and Control Act of 1986 (IRCA) prohibits employers from hiring and employing an individual for employment in the U.S. knowing that the individual is not authorized with respect to such employment. Employers also are prohibited from continuing to employ an individual knowing that he or she is unauthorized for employment. This law also prohibits employers from hiring any individual, including a U.S. citizen, for employment in the U.S. without verifying his or her identity and employment authorization on Form I-9.

The Employment Eligibility Verification, better known, as Form I-9, is the documents employers are required to complete in order to verify if a potential employee is authorized to work in the United States. I-9 is mandatory for all hired workers except of for (i) Individuals hired on or before Nov. 6, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times, and  individuals hired for employment in the Commonwealth of the Northern Mariana Islands (CNMI) on or before Nov. 27, 2009; (ii) Individuals employed for casual domestic work in a private home on a sporadic, irregular or intermittent basis; (iii) independent contractors; and (iv) Individuals not physically working in the U.S.

Form I-9 is comprised with three sections. Section 1 needs to be completed by the employee no later than the first day of work for pay. Section 2 must be completed by the employer within three business employee starts work for pay. Section 3 is completed by the employer if employee’s work authorization expires. Employers are required by law to maintain, for inspection, Form I-9 of each person hired for three years after the date of hire, or one year after the date employment ends, whichever is later.

There are mainly three types of violations. The most serious violation is when the employer knowingly hires or knowingly continues to employ an unauthorized worker. This can occur as the employer knew that the prospective employee was not an authorized to work because he or she did not provide any documents showing eligibility to work.  Another common violation regards failure to prepare or to file Form I-9 of a hired employee. The third kind of a violation regards proper completion of any of the specific sections of Form I-9.

Violations determined by the Immigration and Customs Enforcement (ICE) can involve both monetary fines as well as criminal violations.  Monetary fines are calculated based upon the ascertained violation for each employee involved. The violation for knowingly hiring an unauthorized worker can vary between a $573 to a maximum of a $20,130 per violation.  Monetary violations for a failure to prepare an I-9 or failure to complete or retain an I-9 can range between $230 to $2,292 per violation. Criminal violations can be assessed for repeated failure in hiring unauthorized aliens, especially if ICE found that this has been done intentionally and numerous times. In determining the amount of the monetary fines, ICE takes into consideration the size of the employer business, the good faith, the seriousness of the violation, and any history of a previous violation.

When ICE notifies you a with a Notice of Intent to Fine, it is critical to immediately examine the situation in order to evaluate any possible defenses, which are illustrated in my next blog.

Marco Costa, attorney with West, Longenbaugh, Spanier and Zickerman, PLLC, focuses his practice on business immigration and naturalization, corporate and business law.