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EMPLOYER SANCTIONS

 

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The Immigration Reform and Control Act of 1986 created new obligations for employers. It made every employer responsible for enforcement of some Immigration laws. To do this a new program was established called " Employer Sanctions." Since then every employer collects proof to verify that each employee is authorized to be employed in the United States. This places a heavy burden on the employer and the employee. Every employee must be able to provide documents to the employer proving your eligibility for employment. This is true even for those employees tat are U.S. citizen. Under this law, it’s unlawful for an individual or business to hire, recruit, refer for a fee, or continue to employ an alien knowing that the alien is unauthorized to work. The law requires the employer to physically inspect the documents designated by Immigration and Naturalization Services. Two documents are required; one establishing identity and the other employment authorization. The employer must also complete Form I-9 (employment verification form) attesting, under penalty of perjury, that the employee produced the required documents. In most cases, this verification procedure must take place within three days of hiring. To protect the foreign nationals holding appropriate employment authorization, the Act also prohibits employers from unfair immigration-related practices in hiring, recruiting, and firing people on the basis of their national origin or citizenship. Failure to comply with this law can result in severe civil penalties.

 

 

What are Employer Sanctions?

Employer sanctions are a system of federal laws that prohibit employers from:

(1) hiring, in the United States, a foreign national whom the employer knows (through actual or constructive knowledge) is unauthorized for the employment; and


(2) continuing to employ, in the United States, a foreign national whom the employer learns (through actual or constructive knowledge) is unauthorized for the employment.

Employers who violate these prohibitions are penalized. Employment is any service or labor performed by an individual for another person or entity, for wages of other remuneration (or the expectation of remuneration) within the United States. Even the shortest service at minimal salary would most likely be considered employment.


What is Employment?


If the work is not paid such as volunteer services or labor, it probably is not employment. At time wages are postponed to an individual lacking employment authorization until such time as authorization is granted. In these cases postponing the payment of wages or other remuneration will not necessarily prevent the services or labor being characterized as employment.

Labor or services provided by an independent contractor will not constitute employment. Contract services or labor also are likely do not constitute employment. If there is any question, the nature of the relationship between the independent contractor and the business utilizing its labor or services will be studied in order to determine whether the contractor is truly independent. The greater number of different contracts with different entities increases the probability of being considered independent and not employed. The more independence and discretion the contractor has in the performance of his or her labor or services, the more likely it is that the contractor is independent and not an employee. Please note, however, that if a a person or business engages the services of an independent contractor who, in turn, employs unauthorized foreign nationals, then it may be found to have violated the Employer Sanctions if the person or business knew the contractor's employees were unauthorized.

 

What is Authorized Employment?

In order for employment to be authorized it must be (a) permitted under U.S. federal law, and (b) in accordance with the terms, duration and scope of the foreign national's immigrant or nonimmigrant status and employment authorization, if any.

 

What is Unauthorized Employment?

 Unauthorized employment is services or labor provided in the United States by a nonimmigrant foreign national:

 

  1. Whose nonimmigrant status bars all employment; or
  2. Whose nonimmigrant status only permits employment in a different position, or for different employer;
  3. Who entered without a visa and has not received an Employment Authorization Document form the INS.
  4. Whose nonimmigrant status requires the foreign national to obtain a specific Employment Authorization Document from the INS, where the foreign national has not yet applied for, or been issued, this document.

 

 

What is Employment Authorization

In General

Employment authorization is permission to work in the United States. A U.S. citizens and a permanent residents hold permanent employment authorization in the United States. The duration and scope of employment authorization for all others (called nonimmigrant) vary:


(A) Some nonimmigrant visas prohibit employment in the United States. Tourists and business visitors, for example, may not work at all.

(B) Some nonimmigrant visas require the foreign national to obtain a special documents evidencing employment authorization from the Immigration and Naturalization Service before working. This is called an Employment Authorization Document (EAD). This type of employment authorization is temporary.

(C) Some nonimmigrant visas automatically grant employment authorization, and do not require any additional documentation. Foreign nationals holding H-1B, L-1 or E status fall into this category. This type of employment authorization is temporary and job-specific.

Duration of Employment Authorization

  • Employment authorization may be indefinite or temporary in duration.
  • Only U.S. citizens and permanent resident status hold indefinite employment authorization. Indefinite employment authorization lasts for as long as the individual remains a U.S. citizenship or permanent residence.
  • In cases of temporary employment authorization an an Employment Authorization Document (EAD) is issued. There is an expiration date to the Employment Authorization.



Scope of Employment Authorization

Employment authorizations may be job-specific or general in scope. A general employment authorization means that the foreign national may work for any U.S. employer. Job-specific employment authorization means that the foreign national may only work for one employer.

 

The I-9 From Requirement

Each time there is a new hire, an I-9 form must be completed. The new employee must complete Section 1 on or before the first day he starts. Many companies have the new hire complete the I-9 before his first day of work when he is completing other paperwork normally completed. It seems the most prudent path to treat all new employees the same; require them to complete the I-9 before commencing employment. This will assist in the prevention of a discrimination suit.

Once the new employee completes section 1, the company representative, usually the HR department completes section 2. In section 2 the employer established that the new employee is authorized to work. Many types of documentation can be used to establish authorization to work. They are listed in the back of the I-9. Employers cannot require the new hire to bring any specific document; such as a Green card. Some people provide a passport; many provide a driver’s license and social security card. The employer and/or HR staff should familiarize themselves with the types of documents listed on the back of the I-9 form so that they may be able accurately determine which documents are acceptable.

After the I-9 employment eligibility form is completed, it should be reviewed and filed away in a separate I-9 file; separate from the employee’s personnel file. If the new employee has temporary work authorization, the date should be tracked. As a specific period, e.g. one year, the I-9 file should be reviewed. Terminated employees should have their I-9 forms pulled and placed in a terminated I-9 file. It is required that I-9's for terminated employees be kept for three years beyond the start date or one year beyond the termination date, which is later.

 

How to Complete Form I-9

Employment Eligibility Verification Forms I-9 ("I-9 Forms") must be completed for each employee, regardless of citizenship or national origin, as follows:

    Section 1 of the I-9 must be completed by no later than the day of hire.

    Section 2 of the I-9 must be completed by no later that the third day of business.

    Section 3 of the I-9 Form must be completed:

 

  1. Whenever an employee changes his or her name;
  2. Whenever an employee is re-hired within three years of the date the I-9 Form was originally executed; or
  3. Whenever the employee's employment authorization is about to expire, to show that he or she has ongoing employment authorization.

 

Employers may complete I-9 Forms for employees before the mandated deadlines, provided the forms are completed at the same point in the hiring process for everyone. Employers should not complete I-9s before an applicant accepts the job offer since the form requires sensitive information, such as citizenship status and marital status.

Employer must retain the following for each employee:

  1. The original I-9 form;
  2. Photocopies of the documentation presented by the employee; and any I-9 forms previously used to re-verify employment authorization.

The Employer must retain this I-9 documentation for three years after the date of hire, or for one year after the date employment is terminated, whichever is later. Because I-9 forms contain sensitive biographic data that could potentially form the basis of a discrimination lawsuit (such as the employee's age, marital status, or national origin), the I-9s should be retained separate from all other personnel documentation.

           

How to Examine Form I-9

Employers and HR departments are being placed in a very precarious position when they review the documentation supplied to them by the new employee. If the employer takes a lackadaisical attitude and accepts everything at face value, he may be accepting fraudulent documents and find itself penalized for violating the Employer Sanction rules. If, however, the employer scrutinizes everything, and rejects a valid document it may expose the employer to charges of document abuse and may be fined.

 

Employers should ask the following questions when examining a new hire’s proof of valid work authorization.

 

  1. Is the document(s) listed on list A or list B and list C on the back of the I-9 form?

  2. Does the document appear to belong to the employee? Is the name the same? Does the description match the new hire? If the document has a picture, does the photo look like the new hire?

  3. Does the document look like legitimate? Does it look like other driver’s licenses? Does it look like a Green card? Be careful, there are different versions of the Green Card, which are genuine. Be very careful to avoid rejecting a valid version simply because it’s one that the employer is unfamiliar with.Is the document clearly a forgery? Make sure it hasn’t been tampered; the picture doe not appear to have been replaced or the name changed or a modification has been made.

 

What is the Difference between Technical and Substantive Errors?

The INS differentiates between two types of errors when completing the I-9 Form. Errors can be technical or substantive. The difference is how the error is treated. If the error is technical, then the INS will grant a 10 day period in order for corrections to be made. However, if the error is substantive, there is no grace period

 

Examples of technical error:

  • The employer fails to date the I-9 form
  • The employee doesn’t enter in his/her maiden name, date of birth, or address
  • For rehires, the employer fails to enter in the date of rehire HR staff fails to enter in his/her title

 

Examples of substantive errors

  • The employee doesn’t sign in section 1.
  • HR staff fails to review a list A document or a combination of List B and List C documents.
  • The employer fails to date section 2 in a timely manner: within 3 days of the date of hire or (for employment of 3 days or less) on the date of hire.
  • The employee fails to check one of the three boxes indicating whether he is a U.S. citizen, lawful permanent resident, or alien with temporary work authorization.

 

What are the Fines for Form I-9 Violation?

In the event of an INS audit of an employer’s I-9 forms, a failure to comply with federal law can result in fines. If there are repeated violations, criminal penalties may be imposed. Fines can be levied for a number of reasons. The following are the different basis under which a fine may be incurred and it’s associated cost.  

 

Penalties for hiring or continuing to hire individuals who do not have proper work authorization

 

    First offense: not less than $250 and not more than $2,00 for each unauthorized alien;

    Second offense: not less than $2,000 and not more than $5,000 for each unauthorized alien; or

    Subsequent offenses: Not less than $3,000 and not more than $10,000 for each unauthorized alien.

 

    Penalties for paperwork violations.

    This can include failure to properly complete and retain the forms.

 

Employer face penalties of not less than $100 and not more than $1,000 for each employee for whom an I-9 form was not properly completed or retained.

 

Penalties for knowingly hiring or continuing to employ unauthorized aliens.

  • Employers who engage in patterns of knowingly hiring unauthorized aliens or continuing to employ aliens knowing that they are or have become unauthorized to work may face fines of up to $3,000 per employee.
  • Employer also face possible criminal penalties of six months in jail.

 

Penalties for unlawful discrimination against individuals who do have authorization to work.

First offense: Not less than $250 and nor more than $2,000 for each individual discriminated against;

Second offense: Not less than $2,000 and not more than $5,000 for each individual discriminated against;

Subsequent offenses: Not less than $3,000 and not more than $10,00 for each individual discriminated against;

 

Penalties for requesting more or different documents establishing work authorization

 Not less than $100 and not more than $1,000 for each individual discriminated against.

 



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Moses Apsan and his staff, based in New York City and Newark, NJ provide exceptional legal services throughout the world, in all aspects of immigration to the United States, including non-immigrant (temporary visas), immigrant visa (Green Card) and deportation defense. In addition Mr. Apsan, has been practicing Bankruptcy law and Divorce laws for over 30 years, He was the President of the Federal Bar Association, New Jersey Chapter (1997-2002). He speaks Portuguese and Spanish..
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