As a contractor, hiring talented individuals is important. Unfortunately, there may be instances where the top talent is not permitted to work in the United States. When this is the case, there can be serious penalties for both the contractor and the employee. During the hiring process, employers have specific obligations under immigration law. These sanctions on employer provisions were introduced by the Immigration Reform and Control Act of 1986 (IRCA) in the form of section 274A of the Immigration and Nationality Act (INA). The passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 and the Immigration Act of 1990 further modified these provisions.
To ensure that you remain in compliance with all regulations regarding employees and eligibility to work, you’ll want to contact a Tampa employment immigration lawyer from Cotney Construction Law. In this brief article, we will share a few things you should know about hiring undocumented workers, including the penalties and how to remain in compliance.
What Is E-Verify for Federal Contractors?
When working on a federal project, all employees must be processed through E-Verify. E-Verify is a website created by the United States Department of Homeland Security (DHS) that allows businesses to determine the eligibility of their employees to work in the U.S by comparing information in an I-9 to U.S. government records as part of a background check. It does not replace or eliminate the legal requirement for an employer and employee to complete a Form I-9.
The E-Verify rule, also known as the “Federal Contractor Rule,” mandates a federal contractor to enroll in E-Verify following the completion of a federal contract. As part of this provision, the contractor must validate the eligibility of each employee doing work under the federal contract via E-verify. In addition, all prospective employees, regardless of whether or not they work under a federal contract, are expected to have their eligibility validated through E-Verify. This regulation has been in effect since 2008, and every government contract since then has been regulated by the E-Verify rule.
What Are the Penalties for Hiring Undocumented Workers?
Employers who hire someone without authorization to work in the U.S. may be liable to criminal and civil penalties, ranging from as low as $573 per unauthorized employee for a first offense to $22,927 per employee for second and third offenses. Employers may also face criminal charges, such as six months in prison if a pattern of hiring illegal employees is identified.
Related: E-Verify: Employer Dos and Don’ts
How to Avoid Potential Issues
In order to be found guilty of hiring undocumented workers, according to the U.S. Citizenship and Immigration Services, employers must have:
- Knowingly recruited, hired, or referred for a fee an unauthorized worker for employment in the United States
- Knowingly proceeded to employ an unauthorized worker in the United States
- Failed to comply with the Form I-9 employment verification requirements
- Committed document abuse
- Committed or engage in document theft for the purse of satisfying a requirement of the employment verification process
- Discriminated against an employment-authorized worker in the area of hiring, firing, recruitment, or referral for a fee
- Failed to inform DHS of a Final Nonconfirmation (FNC) of a worker’s employment eligibility
- Required a worker to post a bond or security or otherwise provide financial guarantee or indemnity from any possible liability resulting from the employment verification requirements
In order to avoid potential issues, it’s vital that contractors remain in compliance with all legal requirements. According to U.S. Citizenship and Immigration Services, all U.S. employers must properly complete Form I-9 for each individual they hire for employment in the United States, including citizens and noncitizens. Without a completed I-9, your business may incur fines or be at risk of major issues, and the employee may be terminated for failing to provide proper documentation.
Both employees and employers (or authorized representatives of the employer) must complete the form and present proper documentation for employment within the first three days of employment. Documentation can include citizenship documentation, a passport, employment authorization document, a permanent resident card, and other forms of identification. A Tampa business immigration lawyer can ensure that I-9 forms for all employees, whether U.S. citizens or those working on a visa, are completed properly and that the documentation provided is acceptable proof of identity and authorization to work.
If you are sponsoring an employee visa or working with an employee who has an existing visa, you must meet recurring deadlines to update documentation as failing to do so may result in the employee losing their visa, your business being fined, or other potential legal issues. Furthermore, the worker may be required to pay taxes in both the U.S. and their country of origin (which may need to be arranged by the employer), and there may be foreign employment and labor laws to uphold.
A Tampa business immigration attorney will help ensure that all documentation is kept up to date and that potential penalties are avoided. Additionally, legal counsel will ensure that any potential disputes that may arise from an employee working on a visa are resolved quickly. The attorney will work to understand any foreign laws that must be adhered to and ensure that dual taxation is clearly communicated and understood by all parties.
How to Sponsor an Employee
If you have found a talented individual who is not authorized to work in the United States, you may consider sponsoring a work visa for them. When sponsoring an employee for a workplace visa, there are several aspects that Tampa contractor lawyers can help navigate. Visa provisions authorize the employment of select qualified individuals who are not otherwise authorized to work in the United States. This is intended to help workers in specialty occupations, temporary workers, intra-company transfers, priority workers, skilled or professional workers, and foreign investors. In many cases, a work visa is valid for up to three years and renewable for another three years.
To sponsor an employee for a workplace visa, you must notify the U.S. workforce and submit a Labor Condition Application (LCA/Form 9035/9035E) to the DOL for certification. This process may be lengthy, and specific deadlines apply throughout the process. Current laws limit the number of qualifying foreign workers who may obtain an H-1B visa, and the process to sponsor an employee can be complex. An immigration lawyer will discuss each visa type, ensure that all necessary paperwork is filed and that all needs are met to satisfy visa requirements.
If you are looking for answers to immigration questions, a Tampa construction lawyer with Cotney Construction Law will provide sound legal advice to construction professionals at every level. Not only do we advise our clients on legal matters, but we also provide a myriad of other valuable services for construction businesses, including contract review, employment law advice, and litigation and arbitration services. We also advocate for clients involved in licensing complaints, permitting issues, stop-work orders, and more.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.