Becoming Legal : A guide to the new immigration law in the workplace : Implementing the Law

Implementation Timetable

The law provides a period of six months for public education on the measures’ provisions and a one-year warning period for first violations of the employer sanctions provisions.

The INS has decided to begin this one-year warning period July 1 and end it May 31, 1988.

Beginning on June 1, 1988, the INS will begin full implementation of the civil and criminal sanctions provided by law, including those for first offenses.

The INS says it intends to count on voluntary cooperation by employers. It further intends to proceed “selectively” when imposing fines for flagrant offenders.

Imposing and Appealing the Sanctions

The INS has stated that it will only investigate complaints about employers who employ undocumented workers if they are in writing.

If the investigation determines that an employer has violated the law for the first time during the warning period, the INS will issue a warning.

However, if the INS determines that the law has been violated a second time during the warning period, it will mail the alleged violator an I-762 “Intention to Fine” form.

The employer may appeal the violation notification before an administrative law judge within 30 days of receiving it.

The INS will issue a final order within 45 days if there is no appeal of the initial notification. The rules state that the final order may not be appealed.

Penalties

The law provides prison sentences of up to five years or fines, or both, for anyone convicted of using false documents in order to obtain employment in the United States.

If the employer is found guilty of violating the law, whether by the INS or an administrative law judge, fines shall be applied in the following manner:

For a first offense: between $250 and $2,000 for each illegal alien hired.

For a second offense: between $2,000 and $5,000 dollars for each illegal alien hired.

For additional offenses: between $3,000 dollars and $10,000 for each illegal alien hired.

Flagrant offenders are subject to fines of $3,000 for each illegal alien hired, and/or six months’ incarceration.

Any employer convicted of not complying with the requirement to fill out the I-9 forms, and to keep them on file, is subject to fines of between $100 and $1,000 dollars. INS rules provide that the amount of the fine will depend, among other factors, on the size of the business, the employer’s good faith and the seriousness of the violation.

Any employer convicted of soliciting a bond or indemnity from an employee as a means of protection against these sanctions is subject to a fine of $1,000 and restitution of the money solicited from the employee.

SPECIAL CASES

Employment and Recruiting Agencies

Like employers, anyone recruiting or referring people for employment for a fee is subject to provisions of the law.

Beginning June 1, 1987, anyone recruiting or referring people for employment must fill out Form I-9 within the first three days of a person’s employment. They shall, further, keep the I-9 forms on file for three years. They need not check employees recruited before that date.

Unions

According to INS rules, unions who refer their members or dues-paying non-members to employers are not subject to the I-9 completion and document verification requirements.

Domestic Workers

Anyone employing someone after Nov. 6, 1986, for domestic work on a regular basis must complete form I-9.

The I-9 form need not be filled out if the person is employed for “sporadic” domestic work.

Independent Contractors

The law says an employer hiring an independent contractor need not verify the status of those working for the contractor. The INS cautions employers from using this provision to get around the law.