Academic journal article Defense Counsel Journal

Worksite Enforcement Issues for Employers

Academic journal article Defense Counsel Journal

Worksite Enforcement Issues for Employers

Article excerpt

"NOVEMBER 6, 2006, marked the 20th anniversary of the Immigration Reform and Control Act of 1986 (IRCA).... [IRCA] has created a troubling situation where employers are forced to walk a fine line between scrutinizing documents too little or too much.... Enforcement by ... U.S. Immigration and Customs Enforcement (ICE) has waxed and waned depending on the political winds...." (1) The political winds since 2006 have whipped to a gale for employers as changing patterns in ICE enforcement have dramatically increased the challenges associated with compliance with the immigration laws. Knowledge of federal regulation is the key to an employer's successful navigation of worksite enforcement under the Immigration and Nationality Act. This article surveys the main worksite enforcement issues that employers face when employing aliens in the United States. Major topics of relevance to employers include proper documentation, inspection and audit procedure, and the civil and criminal penalties and the prosecutions associated with them.

1. Authorized Employment and the 1-9

Section 274A(a) of the Immigration and Naturalization Act (INA) (2) states:

It is unlawful for a person or other entity - (A) to hire, or to recruit or refer for a tee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3)) with respect to such employment....

(2) Continuing employment.-It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.

The implementing federal regulation,

8 C.F.R. [section] 274a, elaborates the requirements of the statute. 8 C.F.R. [section] 274a. 12 identifies the classes of aliens authorized to accept employment in over forty-two paragraphs and sub-paragraphs. Beyond the broad distinction between immigrant and non-immigrant alien categories provided by this regulation, this section is impenetrable to the non-immigration-savvy practitioner or employer. No law requires employers to master any particular level of immigration law knowledge for work authorization determination purposes, much less memorize the characteristics of the documents which establish the work authorized categories of aliens.

Employers must complete an 1-9 for all new hires after November 6, 1986. (3) New "hires" does not include employees of independent contractors or sporadic domestic workers. (4) In the first section of the form, the new hire must attest under oath to his/her US citizenship, permanent residency status, or authority as an alien to work. (5) In the second section, the employer must record and attest to having examined documents from a list of acceptable documents contained on the form. (6) The document list identifies specific documents which alone are sufficient to establish the employee's identity and work authorization (List A), or which in combination establish identity and work authorization (Lists B and C, respectively). The employer's representative must also affirm under oath that the documents appear genuine on their face and that to the best of his/her knowledge the new hire is authorized to work in the United States.

Employment is, thus, permissible if 1-9 documents appear both reasonable on their face and to relate to the person who presented them: "A person or entity has complied with the requirement of this paragraph with respect to examination of a document if the document reasonably appears on its face to be genuine. If an individual provides a document or combination of documents that reasonably appears on its face to be genuine and that is sufficient to meet the requirements of the first sentence of this paragraph, nothing in this paragraph shall be construed as requiring the person or entity to solicit the production of any other document or as requiring the individual to produce such another document. …

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