How can an employer become liable for inappropriate employment activities?

There are many ways in which an employer can incur liability under the employer-sanctions provisions of the Immigration Reform and Control Act (IRCA) and the Immigration and Naturalization Act (INA). Depending on the violations, an employer may face civil and criminal sanctions. Civil penalties can amount to thousands of dollars per violation. While criminal penalties are rarer, they can result in jail time for convicted employers.

Most employers believe that their liability extends only to employment of an unauthorized alien. The INA does provide sanctions for knowingly hiring and retaining unauthorized aliens, but it is also illegal for employers to hire new workers without first performing the requisite employment verification procedures. Every new hire, even if he or she claims US citizenship, must produce evidence of employable status for the employer's inspection. This may include a Social Security card, Alien Registration Card ("Green Card") or Employment Authorization Document (EAD). The employer then must complete the federal Employment Eligibility Form, or I-9, certifying that the employer personally viewed the new employee's documentation.

In some instances, employers may be held liable for accepting illegal or fraudulent documentation of a worker's employability. The employer should retain in original form or on microfiche completed I-9s. Employers may face sanctions for not completing this form whether or not any of their employees are unauthorized aliens.

Employers must not discriminate against potential employees based on their nationality or citizenship. Many employers may avoid foreign-born applicants in order to ensure compliance with hiring rules, but the IRCA imposes liability for such discrimination, whether intentional or not.

The imposition of immigration rules on the employment relationship creates new risks for employers. In order to navigate the growing body of these laws and regulations, employers should seek the assistance of an immigration attorney.