Do Employers Really Face Criminal Liability for Immigration Law Violations?

You may not realize that employers could face criminal charges if they hire people who aren’t legally permitted to work in the U.S.  If not, consider this your wake-up call!

Workplace Immigration Raid Leads to Criminal Charges.

Federal immigration agents recently raided a cellphone repair business last week in a Dallas suburb and arrested 280 people charged with unlawfully working in the United States. Immigration law experts described this as one of the largest workplace raids in the past decade.

Previous workplace raids have typically resulted in civil penalties rather than arrests.  This could signal a shift in the federal government’s enforcement strategy: increase the risk that employers may lose their liberty, not just some money.

Risks from Using Staffing Agencies.

This event also highlights an additional risk for employers – using a staffing agency that isn’t in full compliance with the immigration laws.

The company whose workplace was raided said it works with several staffing agencies, each of whom was contractually bound to ensure it complied with U.S. immigration law. These contracts probably contained provisions in which the agencies agreed to indemnity the employer against harm caused by a failure to comply with the law.

Such indemnities are only as good as the staffing agency’s business processes.  Further, the employer may not be able to escape liability if it knew or should have known that an agency didn’t have adequate safeguards in place.

It appears that staffing agencies have become the target of immigration enforcement efforts. This underscores the importance of doing due diligence on any service provider whose failures could lead to civil or criminal liability for the ultimate employer.

Quality System Assessments: A Risk Reduction Strategy.

Employers would be wise to conduct quality system assessments of those providers.  This would include not just their immigration compliance practices but their overall systems for ensuring they deliver what the customer thinks it is buying!

Employers also need to do their own internal quality system assessments.  A critical element of one’s quality system is its methods for processing I-9 forms. The I-9 is used by employers of all sizes to ensure that they only hire people who are authorized to work in the U.S. Whoever owns the I-9 process at any employer needs to be properly trained and equipped!

Implement “Auto-Renewal Clauses” in Your Critical Processes.

I draft a lot of business contracts.  My standard practice is to have each contract automatically renew every year until one party takes an affirmative step to terminate it.  This ensures that the parties don’t accidentally lose a valuable relationship.

Business owners might want to put the equivalent of auto-renewal features in their I-9 systems.  The I-9 process owner could be tasked with automatically ensuring any work authorizations that have expiration dates also get early action to keep them valid.

Michael Oswald

Please note: the above post contains educational information. It is not intended as legal advice. Engage an attorney who is licensed in your state to get advice on dealing with any specific legal issue.

© 2019 Michael S. Oswald

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