11.7.1 Unlawful Employment

11.7.1 Unlawful Employment

Civil Penalties

DHS or an administrative law judge may impose penal- ties if an investigation reveals that you knowingly hired or knowingly continued to employ an unauthorized alien, or failed to comply with the employment eligibility verification requirements with respect to employees hired after Nov. 6, 1986.

DHS will issue a Notice of Intent to Fine (NIF) when it intends to impose penalties. If you receive NIF, you may request a hearing before an administrative law judge. If your request for a hearing is not received within 30 days, DHS will impose the penalty and issue a Final Order, which cannot be appealed.

Hiring or Continuing to Employ Unauthorized Aliens

If DHS or an administrative law judge determines that you have knowingly hired unauthorized aliens (or are continuing to employ aliens knowing that they are or have become unauthorized to work in the United States), you may be ordered to cease and desist from such activity and pay a civil money penalty for each offense.

You will be considered to have knowingly hired an unauthorized alien if, after Nov. 6, 1986, you use a contract, subcontract or exchange, entered into, renegotiated or extended, to obtain the labor of an alien and know the alien is not authorized to work in the United States. You will be subject to the penalties above.

Failing to Comply With Form I-9 Requirements

If you fail to properly complete, retain, and/or make Form I-9 available for inspection as required by law, you may face civil money penalties for each violation. In determining the amount of the penalty, DHS considers:

  • The size of the business of the employer being charged;
  • The good faith of the employer;
  • The seriousness of the violation;
  • Whether or not the individual was an unauthorized alien; and
  • The history of previous violations of the employer.

Enjoining Pattern or Practice Violations

If the Attorney General has reasonable cause to believe that a person or entity is engaged in a pattern or practice of employment, recruitment or referral in violation of section 274A (a)(1)(A) or (2) of the INA (found at 8 U .S .C. 1324a (a)(1)(A) or (2)), the Attorney General may bring civil action in the appropriate U .S. District Court requesting relief, including a permanent or temporary injunction, restraining order or other order against the person or entity, as the Attorney General deems necessary.

Requiring Indemnification

Employers found to have required a bond or indemnity from an employee against liability under the employer sanctions laws may be ordered to pay a civil money penalty for each violation and to make restitution, either to the person who was required to pay the indemnity, or, if that person cannot be located, to the U.S. Treasury.

Good Faith Defense

If you can show that you have, in good faith, complied with Form I-9 requirements, then you may have established a “good faith” defense with respect to a charge of knowingly hiring an unauthorized alien, unless the government can show that you had actual knowledge of the unauthorized status of the employee.

A good faith attempt to comply with the paperwork requirements of section 274A(b) of the INA may be ad- equate notwithstanding a technical or procedural failure to comply, unless you fail to correct a violation within 10 days after notice from DHS.

Criminal Penalties

Engaging in a Pattern or Practice of Knowingly Hiring or Continuing to Employ Unauthorized Aliens

Persons or entities who are convicted of having engaged in a pattern or practice of knowingly hiring unauthorized aliens (or continuing to employ aliens knowing that they are or have become unauthorized to work in the United States) after Nov. 6, 1986, may face fines and/or six months imprisonment.

Engaging in Fraud or False Statements, or Otherwise Misusing Visas, Immigration Permits, and Identity Documents

Persons who use fraudulent identification or employment authorization documents or documents that were lawfully issued to another person, or who make a false statement or attestation to satisfy the employment eligibility verification requirements, may be fined, or imprisoned for up to five years, or both. Other federal criminal statutes may provide higher penalties in certain fraud cases.

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