Guide to U.S. Immigration

25. Employer Sanctions

After November 6, 1986 it is unlawful to employ "Unauthorized aliens".

After November 6, 1986, it is unlawful to employ an alien knowing the alien was or has become unauthorized to work.

It is also unlawful to fail to comply with the new rules requiring employers to verify work authorization and identity.

All employers must complete form I-9 for all employees.

New law does not apply to current employees

Employer sanctions do not apply to individuals employed prior to November 6, 1986.

Verification of Identity and Work Authorization/Record Keeping Rules

Employers must verify the new employee's work authorization and identity by examining the alien's documents. Employer must certify under penalty of perjury that he has conducted such verification on form I-9.

Documents required to Establish Work Authorization and Identity

New employees must present:

1. US passport, unexpired foreign passport with work authorization stamp, certificate of US citizenship or naturalization, or alien resident card (green card)

OR

2. One document evidencing employment authorization - social security card, certificate of birth in the US, or other documents acceptable to the Immigration Service and one document establishing identity - driver's license or other identification acceptable to the Immigration Service.

Employers must retain verification forms up to three years. Compliance in good faith by employers with verification procedures is an affirmative defense against prosecution for violation of employment verification requirements.

Penalties for Employers

The new law establishes civil penalties for employers who knowingly hire unauthorized aliens:

First Offense: $250 to $2000 fine per alien

Second Offense: $2000 to $5000 fine per alien

Third Offense: $3000 to $10,000 fine per alien

Employers who establish a pattern or practice of violations are subject to a $3000 fine per violation and/or six months imprisonment.

Employers who fail to keep verification records can be fined $100 to $1000 per violation.

If an employer has different and distinct divisions or offices, and there is no common control among them, then each division shall be treated as a separate entity.

Employers may not require employees to pay or guarantee payment of fines made against Employers.

Violations of the law shall be heard before an Administrative Law Judge. Adverse decisions can be appealed to the US Court of Appeals.

Unlawful to discriminate

It is unlawful for employers to discriminate against any individual with respect of hiring and employment. Employers with three or fewer employees are exempted from this rule, but they are not exempted from employer sanctions.

It is not unfair to employ a US citizen over a lawful alien if both are equally qualified.