Construction Today - September/October 2017 - 101
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BRB Contractors Inc.
Once ICE determines that an individual is not authorized to work
in the United States there is no grace period for their continued
employment. The agents may provide the company with a period
of time - 10 business days - to take appropriate action to resolve
what the government believes to be the apparent employment of
unauthorized workers. Aside from that, there is no grace period as
the law requires that employers immediately terminate anyone not
authorized to work or run the risk of being charged with the penalty
of continuing to employ an individual in the United States knowing
they are not authorized to work.
How do you protect yourself?
Compliance begins with reviewing the company's Forms I-9. A
business subject to an ICE investigation will be required to turn these
forms over for inspection. The law requires that employers present
a Form I-9 for all current employees hired after 1986, the year the
requirement went into effect. Federal law states that employers must
document and maintain each new hire's identity and work authorization on the Form I-9. In addition, employers are required to re-verify
the work authorization of those with a temporary work visa (e.g.,
H-1B or H-2B workers) prior to expiration of their work authorization.
This requirement applies to all workers and all businesses in the
It is important to note that investigations of companies are often
not random, but rather driven by tips or leads, or part of an overall
enforcement strategy pushed down to local field offices by Homeland Security Investigations.
Companies can be charged with paperwork violations related
to Form I-9 as well as penalties for the unauthorized hiring of
undocumented workers or the continued employment of undocumented workers once their work status is known. A major benefit
to proper completion of Form I-9 is that companies that properly
complete and retain Forms I-9 and are then subject to a government investigation have a good faith defense to allegations that
the company employs individuals not authorized to work in the
United States because they complied with the paperwork requirement. Therefore, proper completion of Form I-9 can lead to a good
faith defense against allegations of knowingly hiring an unauthorized worker.
Penalties for non-compliance can be costly. Failure to complete or
properly complete Forms I-9 within three business days of a new hire
and/or failure to present Forms I-9 during an investigation can lead
to penalties ranging from $216 to $2,156 per form.
Separately, violations for knowingly hiring someone not authorized to work in the United States, or continuing to employ someone
knowing they are not authorized to work range from $539 to $21,563
per violation. Finally, criminal penalties can result from engaging in
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drives municipal utilities
McGuire and Hester
McGuire and Hester is
hard at work on a transit
hub in San Francisco.
BRB Contractors Inc.
Boudreau Pipeline Corp.
JOYCO Construction LLC
McGuire and Hester
Hensel Phelps Construction Co.
a pattern or practice of hiring, recruiting or
referring unauthorized aliens for a fee.
Ultimately, the best defense against a
government investigation is a good offense.
Start by conducting an internal audit of the
company's Forms I-9 using experienced
outside immigration counsel. An audit
gives employers the chance to correct
certain form deficiencies, prepare missing
Forms I-9, and better understand what
human resources professionals are doing
(or not doing) to ensure compliance with
Montserrat Miller is a partner in the Washington, D.C. office of Arnall Golden
Gregory LLP. She counsels and defends companies regarding their immigration-related hiring practices and compliance with the government's Form I-9 and E-Verify
employment eligibility verification requirements, including conducting internal I-9
audits and representing companies subject to a government investigation. She
can be reached at 202-677-4038 or Montserrat.Miller@AGG.com.
SEPTEMBER/OCTOBER 2017 CONSTRUCTION-TODAY.COM