Okay, so it is going to be a BIG nutshell!Every employer needs to think carefully about how they intend to comply with the requirements of IRCA; Employer Sanctions laws are complex, and you could be making costly mistakes without even knowing it. Non-compliance with Form I-9 requirements will result in civil penalties of $110-$1,100 per offense. Each Form I-9 that is not properly completed, stored, maintained/updated, and purged appropriately is counted as a separate offense so fines add up quickly!Compounding the problem is ICE can request all forms for both current employees and all previous employees going back 3 years. Employers who are found to have hired unauthorized workers face fines of $275 – $ 11,000 per incident and a possible prison term of 6 months! Immigration related discrimination carries civil penalties of $250 – $10,000 per incident.And it gets even more complicated! Many U.S. states have enacted additional requirements, some mandating the use of E-Verify, some requiring the completion of additional State issued forms, and most stepping up enforcement and work site inspections.Under the Immigration and Nationality Act (INA), enacted in 1952:(1) The employer must not knowingly hire or continue to employee any person who is not authorized to work in the U.S. An employer may be liable if he/she knows or should have known that an employee is not authorized to work in the United States. (2) The employer must verify the eligibility of every person hired. The verification requirement applies to EVERY PERSON HIRED.Two major amendments to INA effect employers directly:1. The Immigration Reform and Control Act (IRCA), also known as the Employer Sanctions Act, was signed into law by President Ronald Reagan in 1986. This Act makes it illegal for any employer to knowingly hire or recruit persons who do not have authority to work in the United States. The Employer Sanctions Act seeks to discourage illegal immigration by making it difficult for immigrants to find work in the U.S. without proper documentation. IRCA places the responsibility of employment verification solely on the employer. As part of this Act, the Form I-9, Employment Eligibility Verification was introduced. The law makes it mandatory for every employer to screen every new hire for work authorization by accurately completing the Form I-9. The form serves as proof that an employer has verified both the identity and work authorization of the people they have hired.2. The Immigration Act of 1990, includes provisions to prevent document fraud and to prevent discrimination. To discourage document fraud, the Act says a persons cannot knowingly forge, alter or fake documents to satisfy the requirements of U.S. Immigration law. A person cannot use, attempt to use, possess, accept or provide a forged, altered or fake document. To prevent discrimination, the Immigration Act states that employers with 4 or more employees cannot discriminate in hiring, firing, or recruiting based on an individuals national origin or citizenship status. An employer must be be absolutely uniform in conducting the employment authorization verification process to avoid charges of discrimination.The Department of Homeland Security (DHS) is responsible for enforcing immigration laws. The U.S. Immigration and Customs Enforcement (ICE), is the investigative branch of DHS. ICE investigates employers to ensure their compliance with Employer Sanctions laws and has the authority to inspect an employers Forms I-9 at any time. Penalties for violating Employer Sanctions laws include fines and criminal sanctions.On April 30, 2009 ICE issued the following statement:Effective immediately, ICE will focus its resources in the enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration. Immigration law remains a hot topic with the current administration and in the press. Increased national attention has brought new focus to laws that have gone largely unenforced for over 20 years, catching many employers off guard and unprepared for ICE inspections. Even if your company is fully committed to Form I 9 compliance, Employer Sanctions laws are complex and confusing. Enlisting an expert to manage this complicated process is the best choice for many employers.
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