Thought Leadership

Immigration Enforcement Under the Immigration Reform and Control Act

The federal government can, and does, impose penalties on businesses and employers who hire illegal aliens.  These penalties can be severe.  On December 29, 2016, the government filed a Final Decision and Order levying a $58,950 fine against a business for 107 violations I-9 compliance requirements.  The original complaint against the business had sought a fine of $96,398.50.  Three statutes that fall under the Immigration Reform and Control Act, or IRCA, provide the authority for the government to impose civil (money) fines and criminal punishment, including prison time.

The government investigates claims through the Bureau of Immigration and Customs Enforcement, or ICE, which is a division of the Department of Homeland Security.  The ICE may issue a Notice of Intent to Fine the business.  The employer has the option to request a hearing.  If the business exercises that option, the claim is sent to the Department of Justice’s Office of the Chief Administrative Hearing Officer.

The Hearing Officer has jurisdiction over three statutes that comprise the IRCA.  The three statutes are really categories of illegal conduct:

Unlawful Employment of Aliens

8 U.S.C. § 274A prohibits businesses that knowingly hire, recruit or refer for a fee unauthorized aliens.  It also prohibits the continued employment of unauthorized aliens, failure to comply with employment verification requirements, and requiring indemnity bonds from employees.

There are defenses to a claimed violation of this statute.  Any employer that establishes good faith compliance with the requirements of federal law for hiring, recruiting or referring for employment an alien has an affirmative defense.  In particular, a good faith effort to complete I-9 forms and to verify citizenship should relieve a business from liability or criminal sanction.

It is important to know that this liability under this statute is not limited to employers who have only W-2 employees.  Any person who uses a contractor, subcontractor, or exchange to obtain labor of an illegal alien who will perform labor is subject to the statute.  Review section (a)(4) of the statute to understand its scope.

Unfair Immigration-Related Employment Practices

Under 8 U.S.C. § 274B, employers that employ three or more people may not discriminate against a citizen of the United States, or a lawfully admitted alien, in any hiring practice.  An alien who is protected by the law is described in detail in Section (a)(3)(B) of the statute.  In addition, an employer may not intimidate, threaten, coerce or retaliate against a person for asserting their rights under this statute.  Businesses may not demand a person complete more documents and share more information about their citizenship status than that required under the IRCA.

Any charge made by an individual under this statute may be investigated by the Special Counsel for Immigration-Related Unfair Employment Practices within the Department of Justice.

Immigration-Related Document Fraud

Under 8 U.S.C. § 274C, it is unlawful for any person to knowingly forge, counterfeit, alter or falsely make any document required under the IRCA, use attempt to use, possess obtain accept or receive a forged or counterfeit document.  Use or an attempted use of an illegal document results in penalties under the statute.  Criminal sanctions may be imposed when an application for benefits is made with illegal documents intentionally, or a reckless disregard of the facts.

Claimed violations begin in an administrative proceeding, rather than in court. Read more about this process here.