Immigration and employment
January 9th, 2020
Daniel Marks, David A. Selden, Demetra Makris, Heidi Nunn-Gilman, Julie A. Pace
Gammage & Burnham
Immigration regulations and employment
Probably the most prevalent of the laws regarding immigration, the Immigration Reform and Control Act (IRCA), as amended by the Immigration Act, regulates employers by:
- imposing restrictions prohibiting employers from knowingly hiring or continuing to employ individuals without proper authorization to work in the United States or using a contract to obtain the labor of a worker that the employer knows is not authorized to work in the United States
- penalizing employers for failing to verify employment authorization for all employees (i.e., fully complete the Form I-9 at the time of hire)
- prohibiting discrimination on the basis of national origin or citizenship status.
Each of these restrictions is discussed in more detail herein to help employers ensure that they are in compliance with the employment eligibility verification and nondiscrimination requirements of the IRCA.
Hiring unauthorized workers
Under the IRCA, it is illegal for employers to hire or continue to employ individuals knowing that the individual is not authorized to work in the United States. An employer may violate this section even if it did not have actual knowledge that the individual was not authorized to work in the United States. Constructive knowledge can be established if the employer had information that would lead an employer, through the exercise of reasonable care, to find out that the person was unauthorized. It is important to note, however, that knowledge cannot be inferred from the person’s foreign appearance or accent. Good faith compliance with the verification requirements is a defense to a charge of hiring an unauthorized alien.
Foreign nationals must apply for and receive authorization to work and live in the United States. There are several temporary work authorization programs, including a variety of visas. Additionally, foreign nationals may receive permanent resident status. Without work authorization from the federal government, an individual may not work in the United States. If an employer knowingly hires an individual without work authorization, the employer may be liable for violations of the IRCA or criminal laws.
Verifying and documenting employment authorization
The law requires employers to complete a Form I-9 for all employees within three days after the employee begins employment. In completing the Form I-9, the employer verifies both:
- a worker’s identity
- a worker's employment authorization.
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) created a good faith defense for procedural or technical violations in completing the Form I-9. This provision is sometimes referred to as the “Sonny Bono Amendment,” named after its sponsor, the California Congressman and performer. Employers who commit a technical or procedural violation in completing the I-9 are excused if they make a “good faith attempt” to comply with the I-9 requirements. This defense does not apply if the employer has failed to cure the violation within 10 days after being notified of the failure by U.S. Immigration and Customs Enforcement (ICE) or another enforcement agency or if the employer has engaged in a pattern or practice of violations of the prohibition against knowingly hiring or continuing to employ unauthorized workers. Additionally, under an ICE guidance document known as the “Virtue Memo,” this good faith defense does not apply if an employer has previously been notified by ICE of technical or procedural errors and makes the same errors on subsequent I-9 forms and ICE identifies the errors in a second or subsequent audit.
A failure to complete the I-9 form correctly and completely may lead to sanctions of a minimum of $230 and a maximum of $2,292 per Form I-9, even if the employee hired is authorized to work in the United States. Section 1 of the Form I-9 must be completed on the employee’s first day of work. The rest of the form needs to be completed within three business days after the start of employment. The I-9 form must be retained for three years after the date of hire or one year after the date of termination, whichever is later. An employer must always have an I-9 on file for every current employee hired after November 6, 1986. Owners of a company who work at the company also must complete a Form I-9 if they began at the company after November 6, 1986.
The IRCA also makes it an unfair immigration related employment practice for a person or business with four or more employees to discriminate against any person on the basis of their national origin or citizenship status (except unauthorized aliens). The IRCA supplements Title VII of the Civil Rights Act of 1964 (Title VII) in prohibiting discrimination on the basis of national origin. Employers may not have “citizen only” hiring policies and generally may not ask applicants if they are U.S. citizens. Employers generally may not discriminate against an applicant because their work authorization expires in the future.
The U.S. Department of Homeland Security (DHS) Bureau of Immigration and Customs Enforcement (ICE) enforces the employment verification provisions of the IRCA. Enforcement of IRCA began increasing after IIRIRA mandated that significantly more investigators be hired to enforce the immigration laws and that at least half of the investigators be assigned to investigate possible employer sanctions violations. IIRIRA also made significant changes to certain aspects of the employee verification and anti-discrimination provisions.
Enforcement fluctuates depending on the policies and priorities of the White House and DHS. Enforcement has reached its highest levels ever based on the number of inspections conducted in a year. The paragraphs that follow demonstrate fluctuations in the past several years.
On August 10, 2007, DHS announced it would increase worksite enforcement and increase the number of investigators assigned to investigate possible employer sanctions violations. Additionally, criminal arrests for violations of the IRCA increased from 25 in 2002 to more than 700 in 2006, 850 in 2007, and 1,100 in the fiscal year 2008. Further, in fiscal year 2007 ICE obtained more than $31 million in criminal fines, restitution, and civil judgments as a result of worksite enforcement actions.
The Obama Administration continued the emphasis on worksite enforcement, and from 2009-2014 conducted what was then a record number of I-9 audits. Enforcement actions slowed some in 2015 and 2016, and is the focus on criminal investigations increased. In April 2009, then DHS Secretary Janet Napolitano issued guidance directing ICE to focus resources into worksite enforcement programs on the criminal prosecution of employers who knowingly hire undocumented workers.
Between 2009 and 2014, ICE conducted approximately 7,400 worksite enforcement audits, often serving several hundred notices of inspection in the span of a few days in what has come to be known as “surge audits.” ICE focused each surge on different target groups, including critical infrastructure, key resources, employers who had previously been audited, employers who had been reported to ICE through its tip line,
In 2014 ICE achieved a record setting settlement when it reached an agreement with a Washington state agricultural employer who agreed to pay approximately $2.25 million in fines after having been found to have more than 1,700 unauthorized workers on its payroll. This settlement, however, was eclipsed by a forfeiture judgment of $80,000,000 plus a civil fine of $15,000,000 in civil penalties for violations of IRCA against a nationwide tree-trimming and construction company accused of knowingly employing thousands of undocumented workers.
In the first half of 2015, ICE had conducted only 435 worksite enforcement audits and arrested 65 managers at non-compliant companies. ICE imposed less than $5 million in fines, the lowest amount in the last five years. The number of I-9 audits completed annually decreased in 2015, 2016 and 2017; but in October 2017, the Acting Director of ICE under the Trump Administration announced that the Agency would quadruple to quintuple the number of ICE audits that had been conducted under the previous administration.
In fiscal year (FY) 2018, ICE opened 6,848 worksite investigations and issued 5,981 Notices of Inspection (NOI) of I-9 audits, which was the highest number ever in a one-year period and a significant increase over the 1,360 I-9 audits initiated in FY 2017. ICE made 779 criminal and 1,525 administrative worksite-related arrests in FY 2018. ICE has not yet completed the audits on all of the companies served an (NOI).
The Acting Associate Director of ICE’s Homeland Security Investigations, the branch that conducts worksite enforcement, has stated that they intend to increase the number of I-9 audits in an effort to create a culture of compliance among employers. In 2019, ICE continued the trend of increasing the number of ICE audits, serving more than 3,300 NOIs by mid-summer 2019. ICE also engaged in several worksite raids, arresting employees believed to be working without proper employment authorization. In the largest of such raids, on August 7, 2019, ICE arrested approximately 680 individuals at five agricultural processing plants in Mississippi. ICE also seized company records as part of an ongoing criminal investigation into the company's hiring processes.
Additionally, this manual provides chapters on “how-to” topics to identify strategies to assist employers in complying with law and avoiding knowingly hiring or retaining undocumented individuals.
State immigration laws
Immigration has traditionally been a subject of federal law. Indeed, the United States Constitution provides in Article 1, Section 8, that “the Congress shall have Power … to establish a uniform Rule of Naturalization …” Beginning in approximately 2009, however, states and local governments became active on immigration issues by passing a variety of laws addressing various aspects of immigration, including employment eligibility verification practices.
For several years, the issue of immigration was a high-profile political issue; and there are a rash of state and local laws addressing various aspects of the subject. The years 2009 to 2013 saw the greatest activity. In 2014, there was a marked slowing, with fewer states passing laws relating to immigration or undocumented workers and the prospect of federal immigration reform. With the failure to pass any federal immigration reform, states again stepped in; and 2017 saw an uptick in state-level laws relating to immigration or immigrants, while the number of immigration-related state laws decreased by 15% in 2018 as compared to 2017.
According to data compiled by the National Conference of State Legislatures, state- enacted laws relating to immigrants and refugees increased 110% in 2017 over 2016, with 206 laws enacted in 2017 versus 98 in 2016. In contrast to the early years in which the majority of laws disfavored immigrants or imposed additional limitations on benefits or required employers to take additional verification actions, in 2017, much of the enacted legislation focused on providing sanctuary policies, refuges, education/civics and instate tuition for immigrants, while some of the legislation directly prohibited sanctuary cities or instate tuition for undocumented immigrants. Trends in 2018 included occupational licensing, sanctuary policies, refugees and education/civics.
The number of immigration-related laws passed by the states in 2015 was slightly higher. Enacted legislation dealing with immigration increased by 26% in 2015, with 216 laws enacted compared to 171 laws in 2014. The number of resolutions rebounded to 274 in 2015 after only 117 resolutions were enacted in 2014. In 2013, 437 laws and resolutions related in some aspect to immigration were passed by 45 different states, a 64% increase from 2012.
In 2009, more than 1,500 bills or resolutions were considered with every state addressing immigration proposals. During 2009, 353 immigration-related bills or resolutions were passed into law in state legislatures. That was nearly 10 times greater than the number of immigration-related laws – 38 – that were passed in 2005.
In 2010, more than 1,400 bills were introduced, and 208 laws passed. In 2011, more 1,600 bills and resolutions were introduced in 50 states relating to immigrants and refugees; and more than 300 were enacted. In 2012, only 156 laws were enacted by the different states, down from 197 enacted in 2011 and 208 enacted in 2010.
SB 1070, enacted by the State of Arizona in April 2010, is the state immigration law that has attracted the most attention. A Federal District Court ruled that key aspects of the law are unconstitutional because of the federal preemption of immigration laws, and the Federal Court of Appeals for the Ninth Circuit affirmed. Consequently, only part of the law went into effect on July 29, 2010, and parts of it were enjoined by the District Court. The state appealed the District Court’s ruling to the Ninth Circuit Court of Appeals. Arizona Governor Jan Brewer appealed the decision to the U.S. Supreme Court.
In June 2012, the U.S. Supreme court issued a decision on enforcement of SB 1070. The Supreme Court allowed the implementation of the controversial provision requiring officers to determine immigration status of a person stopped, detained, or arrested when there is “reasonable suspicion” that they are in the United States illegally. The Court declined to rule that the provision is unconstitutional on its face but left open the possibility of additional challenges to that section as the law is enforced. The Court declared provisions unconstitutional that make it a state crime not to carry papers documenting legal residency, that allow for warrantless arrests in certain situations, and that make it a state crime to look for work or to perform work in Arizona as an undocumented immigrant. The provisions of SB 1070 and the Court’s decision are of interest to not only Arizona but also to employers in other states, as well because SB 1070 has been followed by similar legislation in other states.
The legal issues involved in employment-related immigration practices are somewhat different than the legal issues involved in other aspects of immigration law. The Immigration Reform and Control Act (IRCA) specifically stated that the federal government has preempted state and local governments from enacting civil or criminal penalties for employment-related immigration practices “except for licensing and similar statutes.” That exception, referred to as a “savings clause,” has left room for debate regarding whether and/or to what extent state and local governments may take action against the business licenses of employers or impose other sanctions against employers based upon immigration practices. The exception for state action potentially allowed by the savings clause is not present in non-employment aspects of immigration law.
Enforcement of immigration laws, elimination of illegal immigration and border security (including through such things as a wall between the U.S. and Mexico), and a tightening of visas and legal immigration have been identified as priorities for a new Trump Administration. The Federal Government continues to be active in advances to immigration programs. On May 4, 2017, Congress passed an appropriations bill to fund the federal government through Fiscal Year 2017. The bill also extended four immigration programs through September 30, 2017. These programs are E-VERIFY, the Conrad 30 Waiver Program for foreign medical graduates working in underserved areas, the special immigrant non-minister religious work program, and the EB-5 Regional Center Program.
Congress has consistently reauthorized these programs on an annual basis; however, a proposed regulation could increase the investment minimums for the EB-5 Regional Center Program and grant the U.S. Citizenship and Immigration Services (USCIS) more authority over that program.
The 2017 spending bill also provided relief from the 66,000-cap of H-2B visas in the temporary nonagricultural worker program for FY 2017. The bill authorized the Department of Homeland Security (DHS) to increase the cap if, after consulting with the Department of Labor, DHS determines there are not sufficient, able, willing and qualified U.S. workers to meet the needs of the American businesses for temporary nonagricultural work. Additional visas were issued after the cap was met during the first week that applications were open.
The 2018 federal budget included a $2.8 million (7%) increase for the Department of Homeland Security. The budget included increased spending on border security and immigration enforcement and dedicated funding to build a wall on the US-Mexico border.