Beyond the Wall What Employers Need to Know About Immigration Enforcement

President Donald Trump’s January 27 executive order imposed a 90-day suspension on the entry into the United States of foreign nationals of Iran, Syria, Sudan, Somalia, Libya, Iran and Yemen; a 120-day suspension on the entry into the United States of any refugee from any country; and an indefinite ban on the entry into the United States of all Syrian nationals, for any reason whatsoever.

The suspensions and ban have gotten a lot of attention, but the President’s stated plans for immigration enforcement include a number of measures. In particular, the president has spoken about more stringent enforcement of the law prohibiting employment of undocumented workers.

Knowing Immigration Reform and Control Act of 1986

The Immigration Reform and Control Act of 1986 prohibit the “knowing” employment of any individual not authorized to work in the US. In the context, “knowing” means that an employer knows, or has reasoned to know, that a prospective employee is not authorized to work in the US.

Current law requires an employer to verify the employment status of every new hire, at the time of hire, by using Form I-9. Section 1 of the form is for employee information; section 2 of the form is the employer review and verification of identification and work authorization documents. The completed form must be retained by the employer, together with photocopies of the documents presented by the employee as proof of identity and authorization to work.

Employers should expect the number of workplace visits by agents of Immigration and Customs Enforcement (“ICE”) agents to increase, and that the examination of I-9 forms will be more exacting.

Penalties and Violation

Penalties for hiring undocumented workers in violation of the Immigration Reform and Control Act range from $539 to $4,313 for each undocumented worker (first offense); $4,313 to $10,781 for each undocumented worker (second offense); and $6,469 to $21,563 for each undocumented worker (third and subsequent offenses). Employers who have been found to engage in a “pattern or practice” of hiring undocumented workers are fined $3,000 for each undocumented worker, with no cap, and may be sentenced to up to six months in prison.

The penalty for failure to comply with Form I-9 verification requirements ranges from $216 to $2,156 for each employee with respect to whom an employer has failed to properly verify work authorization.

All businesses, or whatever type or size, should expect and be prepared for more vigorous enforcement of immigration-related regulations, especially as no new legislation is required for enforcement of existing laws.