Running a business can be difficult. There are many moving parts that business owners must keep track on an a daily basis. Add in all of the legal aspects that come with running a business, and you may find yourself in need of a dedicated business lawyer. Business owners often have questions about the potential for discrimination in hiring. A common question is, “Is it illegal to employ undocumented immigrants?”
Immigration Reform and Control Act (IRCA)
The Immigration Reform and Control Act (IRCA) is a federal law that prohibits businesses from knowingly engaging in illegal activities, such as:
- Hiring undocumented immigrants
- Recruiting undocumented immigrants
- Referring illegal aliens to work in the United States
These laws also make it a crime to hire a general contractor who employs undocumented immigrants. By hiring an undocumented immigrant, you are putting yourself in a position to face severe criminal and civil punishments. Oftentimes, individuals will state that they did not know that the immigrant was in the United States illegally. Because they didn’t know their employee was undocumented, do they still face criminal charges?
Is it Illegal to Employ an Immigrant that You Didn’t Know was Undocumented?
Even if you did not know that your employee was in the United States illegally, you may still face criminal charges if you are found to have violated the IRCA. Employers are required to complete a Form I-9 upon hiring a new employee. Form I-9 is used to verify the identity and employment authorization of individuals to be employed in the United States. Therefore, although you may not have known an employee was undocumented, you had a duty to find out if the employee was undocumented.
Understanding Discrimination Laws
While it is illegal to hire an undocumented immigrant, employers must also understand that they cannot discriminate against individuals applying for a position within their company on the basis of national origin or ethnicity. This is considered employment discrimination. A company cannot avoid this problem by simply not hiring immigrants, for obvious reasons. This practice is illegal and can lead to severe punishment if a company is found to have discriminated in the hiring process. With that in mind, how does a company ensure they are not hiring illegal immigrants?
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How to Avoid Hiring an Illegal Immigrant
First and foremost, an employer should complete the I-9 Form to the best of their ability. While it is important to have this information as thorough as possible, employers should not request more documents than required to verify employment eligibility. They also cannot decline genuine-looking documents. It is in their best interest to act in “good faith” when determining employee eligibility. If a situation comes up where an employee’s immigration status comes into question after hiring them, the employer should investigate the situation in a reasonable manner.
Penalties for Hiring an Illegal Immigrant
Businesses or employers participating in the illegal activity of hiring undocumented immigrants may face criminal and civil penalties. Individuals who illegally hire, recruit, or refer illegal aliens to work in the United States are in violation of Title 8 U.S.C § 1324.
Criminal Penalty – Being found guilty of a criminal violation is punishable by a fine of up to $3,000 for each unauthorized alien and/or up to six months imprisonment.
Civil Penalty – Individuals found to have hired illegal aliens are subject to a civil penalty of $1,000 for each violation and to an administrative order requiring the return of any amounts given to the employee.
The aforementioned penalties do not include the punishments for harboring illegal immigrants, which employers may also face if they are found to employ undocumented immigrants.
Nebraska Criminal Defense Lawyer
The penalties for hiring undocumented workers can be severe. On top of that, there are strict guidelines regarding the illegal aspects of discrimination in the hiring process. If you or somebody you know is facing criminal charges due to employing undocumented immigrants, you should seek legal advice. The experienced Nebraska criminal defense attorneys at Berry Law have experience in fighting criminal charges related to employing undocumented immigrants. Contact us today at (402) 466-8444 to schedule a confidential consultation.
