Can a U.S. employer hire an alien who does not have an authorized employment document?

What is unauthorized employment?

Generally, for the immigration purpose, unauthorized employment is referred to any service or labor performed for an employer within the United States by an alien who is not authorized by the Department of Homeland Security (DHS) to accept employment or period of the alien’s employment authorization (legally).

Can a U.S. employer hire an alien who does not have an authorized employment document?

For the short answer is “No’. According to the Immigration Reform and Control Act, the employers are responsible to ensure that every new hire is legally authorized to work in the United States. If the employer fails to comply this process, and later the DHS or other federal entities discover these scenarios for some reasons, the employer may be charged with the loss or suspension of a business license and will be damaged their reputations in the business. These penalties can be ranged from fines (per unauthorized worker) to imprisonment for knowingly employment of unauthorized individual. Additionally, employer may face civil penalties for document fraud (if applicable) or engaging in a pattern of violating of U.S. Immigration Laws. While employers face civil penalties, undocumented workers can also face deportation based on their immigration status or if they are found to have violated their immigration status.

What will happen to the U.S. employer if they employ someone without work authorization?

Hiring undocumented workers carries significant legal risks for employers, including civil fines, criminal prosecution, and potential loss of business licenses. Specifically, the penalties can range from thousands of dollars per worker to imprisonment. According to handbook for employers M-274, DHS will consider the employer to have knowingly hired an unauthorized alien if, after Nov. 6, 1986, the employer renegotiate or extend a contract or subcontract to obtain the labor of an alien who is not authorized to work in the United States.

As soon as DHS discovers that the employer knowingly hired or knowingly continued to employ an unauthorized alien, or failed to comply with the employment eligibility verification requirements, DHS will issue a Notice of Intent to Fine (NIF). When the employer received the NIF, they have a limited right to request a hearing before an administrative law judge. If the employer does not respond DHS notification within 30 days, DHS will impose the penalty and issue a Final Order, which cannot be appealed.                                                                       

How can DHS discover unauthorized employment?

DHS is comprised with various departments including USCIS, and they can discover unauthorized employment through various methods, including reviewing tax returns, resumes, and visa support letters, as well as monitoring social media and other online platforms etc. They also rely on tips and complaints from individuals or employers and may conduct site visits. Additionally, USCIS can access information from sponsors, employers, and educational institutions.

What is the fine for I-9 violations or hiring the unauthorized Aliens?

If DHS or an administrative law judge determines that the employer has knowingly hired unauthorized aliens (or are continuing to employ aliens knowing they are or have become unauthorized to work in the United States), or an investigation reveals that the employer knowingly hired or knowingly continued to employ an unauthorized alien, or failed to comply with the employment eligibility verification requirements, the following fine schedule can be referenced below:

• Form I-9 paperwork violations: $281 to $2,789 per Form I-9

• Knowingly employing unauthorized alien (first offense): $698 to $5,579 per violation

• Knowingly employing unauthorized alien (second offense): $5,579 to $13,946 per violation

Any criminal penalties for hiring the unauthorized Aliens?

According to the Immigration Reform and Control Act of 1986 (IRCA), it has established a system for employers to verify work authorization, and it also provided an amnesty program for some undocumented immigrants already in the country. However, it was  indicated that civil and criminal fines for the unlawful hiring of aliens which include a maximum penalty of six months imprisonment and a fine of $3,000 per worker.