Costly Consequences Of Hiring Undocumented Workers

While immigration reform will undoubtedly continue to be a hot topic among presidential hopefuls of both parties, the facts on the ground remain unchanged for employers. According to a study from the Pew Research Center, unauthorized immigrants comprise about 5.1 percent of the national labor force. In Texas, those numbers are almost double. Despite the fact that undocumented workers make up almost 10 percent of the state’s labor force, employers should be very wary of employing individuals without permits to legally work in the United States.

Under the Immigration Reform and Control Act, employers are required to complete and file an I-9 Employment Eligibility Verification form for each new hire. Part of the Form I-9 requires prospective employees to present certain documents as proof of their eligibility to legally work in the U.S. It is the employer’s responsibility to verify these documents to determine eligibility. If an employer becomes aware or has a reason to suspect that an employee is unauthorized to work in the U.S., the employer should take the matter very seriously.

Employers who fail to complete the form or knowingly hire undocumented workers can face monetary penalties and even jail time. Fines range from $110 to $10,000 per unauthorized employee, depending on whether the employer was aware of an employee’s illegal status or if the employer has demonstrated a pattern of knowingly hiring unauthorized workers. Individual employees of the business may also face federal charges and imprisonment for their roles in the illegal activity, with sentences ranging from six months to 10 years, as the owners of a Houston tortilla factory recently found out.

Four employees of La Espiga de Oro, a tortilla factory located in the Houston Heights, were arrested and brought up on charges of harboring, hiring and continuing to employ workers they knew were unauthorized. Among the four individuals were the factory’s owners, Lydia Botello Lira and her husband, Alfredo Sosa Lira.

These arrests are part of an investigation dating back to 2008 when, according to the report documents, the Homeland Security Investigations Workforce Enforcement Group received a tip alleging that the factory was “knowingly hiring people who lacked legal permission to be in the United States.” The investigation was extensive, and included government informants posing as “unauthorized aliens” who were hired by the company, despite having told the managers that they didn’t have the proper documents needed to be eligible for employment in the U.S. The owners have gone on record as saying that as much as 50 percent of the company’s workforce was not eligible to work in the U.S.

Practical strategies for employers

So what can employers do to protect themselves against fines and possible arrest? Below are a few practical strategies that will help make sure you are hiring and retaining employees who are legally authorized to work in the U.S.

Make filling out Form I-9 part of every employee’s first day on the job.
If an employee is not able to provide the proper documentation to complete the form within three days, the employee must provide an acceptable receipt indicating that he or she has applied for an authorizing document, and the employer should retain this receipt for its records. From that point on, the employee generally has 90 days to provide the actual document to fully complete the form.

Complete Form I-9 with an employee once he or she is officially hired, not before an offer is accepted.
This will help to avoid excess paperwork for applicants that do not make the cut and, more importantly, will help companies avoid claims that work-authorized individuals were not hired based on age, citizenship status, immigration status or national origin.

When completing Form I-9, employers must:

• Physically examine each original document the employee presents to determine if it reasonably appears to be genuine and relates to the person presenting it. The person who examines the documents must be the same person who signs Section 2 of the Form I-9. Both the examiner of documents and the employee must be physically present during the examination.
• Record the verification document title from List A or record one verification document from List B and one from List C.
• Record the name of the issuer of the document (example: Social Security Administration).
• Record the document identification number and the expiration date (if applicable).
• Record the employee’s employment start date.
• Sign and date under the certification section and also provide the signer’s job title, the name of the business and its address.
• Return the employee’s documentation. Employers may, but are not required to, photocopy the document(s) presented. If photocopies are made, they should be made for all new hires or re-verifications. The photocopies should be retained with the Form I-9.

If an employee’s authorizing document expires, the employer must re-verify the employee’s employment eligibility before or on the expiration date.
To keep information current, employers should fill in Section 3 of Form I-9 or use a new form if Section 3 is already completed. If there is a more current version of the Form I-9 at the time of re-verification, Section 3 of the current version must be completed. If the employee is unable to produce documentation outlining that he or she can remain working, then that employee cannot remain employed. Employers may not re-verify an expired U.S. passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card (Form I-551), or a List B document that has expired.

Design a system.
Design a reminder system for the company so that employees with only a receipt are not forgotten and authorization documents do not expire without notice.

In conclusion, as evidenced by the case of La Espiga de Oro, the U.S. government has greatly increased workplace investigations, exposing more employers to penalties for noncompliance and making it more important than ever to take compliance seriously. It is important to conduct internal audits regularly to ensure your business is complying with the law. You may also want to consider consulting an attorney to review your procedures and forms to be as prepared as possible in the event of an audit.

This article originally appeared in the Houston Business Journal. Click here to read the original article.

This article is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.