Federal Unlawful Employment of Illegal Aliens Charges in New York
Although it is common knowledge that it is unlawful to employ illegal aliens, many individuals are unaware that this is actually a crime punishable by up to six months imprisonment and a fine of up to $3,000 per immigrant unlawfully employed. Worse, the payment of these individuals “off the books” frequently results in additional criminal charges, including the Willful Failure to Collect and Pay Over Taxes, in violation of 26 U.S.C. § 7202, and Tax Evasion, in violation of 26 U.S.C. § 7201, crimes punishable by up to five years imprisonment. See, e.g., United States v. Quiros, 417 F. App’x 37, 38 (2d Cir. 2011).
For this reason, it is critical that you retain a skilled defense attorney as soon as you believe that you may be the target of an investigation into your employment practices. Federal unlawful employment of illegal aliens charges in New York are often prosecuted very harshly, especially if the defendant has a history of investigations, violations, and/or convictions for similar conduct.
Who Is Allowed to Work in the United States?
Only U.S. citizens, documented legal permanent residents, and individuals with valid work visas are allowed to hold gainful employment in the United States. Both eligibility to work and personal identity can be verified through a valid U.S. passport, a permanent resident card, or an unexpired authorization card or document issued by U.S. Citizenship and Immigration Services (USCIS). Alternatively, a combination of documents—for example, a New York State-issued photo ID and a Social Security card—can be used to verify that a worker has the right to work in the United States.
Employers bear the burden of ensuring that every person they hire is eligible to work in the United States. Accordingly, even if an employer in New York inadvertently hires an illegal worker, they may still face both civil and criminal sanctions under federal law for unlawful employment of illegal aliens.
How Does ICE Investigate Suspected Violations?
For the purposes of ensuring that all workers in New York are legally allowed to work in the United States, federal law requires employers to complete, verify, and retain an Employment Eligibility Verification Form I-9 for every person they hire. If an employee does not verify both their identity and their eligibility to work in the U.S. through this form, it is illegal to hire them for any job in any industry.
If Immigrations and Customs Enforcement (ICE) suspects a business is using undocumented labor, the agency has the authority to undertake an I-9 audit and punish violations with civil fines and, in severe cases, the arrest of both employees and illegal workers. Once an employer receives a notice of inspection from ICE, they have only three days to produce I-9s for every one of their workers. Anyone who anticipates issues with this should retain legal counsel as soon as possible.
How Federal Law Criminalizes Employing Illegal Aliens
Pursuant to 8 U.S.C. § 1324a(a)(1)(A), it is unlawful for any person or corporation to knowingly “hire, or to recruit or refer for a fee” any person who is unauthorized to work in the United States. Further, pursuant to § 1324a(a)(1)(B), it is unlawful for any person – after hiring an undocumented immigrant – to continue to employ such individual upon learning that they are, or have become, unauthorized to work in the United States.
This statute was enacted as part of the Immigration Reform and Control Act of 1986, which is a “comprehensive framework for ‘combating the employment of illegal aliens'” that penalizes employers of illegal aliens much more harshly than the immigrants themselves, and requires employers to verify the “employment authorization status of prospective employees” prior to hiring them. Arizona v. United States, 132 S. Ct. 2492, 2504 (2012); United States v. Kim, 193 F.3d 567, 573-74 (2d Cir. 1999). Any person who engages in a “pattern or practice” of violations of either § 1324a(a)(1)(A) or (B) may be punished criminally – and fined by up to $3,000 for each unauthorized alien employed, imprisoned by up to six months, or both. 8 U.S.C. § 1324a(f)(1).
A Pattern of Behavior Is Important
To be sure, 8 U.S.C. § 1324a does not criminalize “isolated, sporadic, or accidental acts” which involve the employment of illegal aliens. 8 C.F.R. § 274a.1(k); see United States v. Calhelha, 56 F. Supp.2d 350, 363 (D. Conn. 2006). Instead, the accused must engage in “regular, repeated, and intentional activities,” which result in a pattern or practice of violations of either § 1324a(a)(1)(A) or (B).
However, even if the government fails to establish that the accused has engaged in a pattern of unlawful hiring, he may still be liable for large civil penalties – between $250 and $2,000 for each unauthorized alien for a first time offender; $2,000 to $5,000 for each unauthorized alien for a second time offender; and $3,000 to $10,000 for a defendant previously fined more than once under this statute. 8 U.S.C. § 1324a(e)(4).
Does New York Require E-Verify?
E-Verify is a system operated by the federal government. This web-based program allows employers to verify the eligibility of someone to work in this country by confirming their identity. It automatically matches details provided by the employee on their I-9 form against documents held by the Department of Homeland Security and the Social Security Administration.
New York does not require employers to use E-Verify, although other states do. It is available on a voluntary basis in New York, and some municipalities require employers to register and use it.
While E-Verify can be useful for confirming an employee’s right to work in the United States, using it does not protect business owners from the risk of criminal prosecution. No matter what resources a person uses to comply with the law, they could still face criminal arrest and conviction for unlawfully employing undocumented immigrants even if they relied on this type of program.
Defense Strategies in Unlawful Employment of Undocumented Immigrant Cases
Just like with any other crime, there is an opportunity to fight these charges and avoid a conviction in federal court. In fact, the statute highlights a specific defense that applies to the unlawful employment of illegal aliens. It is known as the “good faith” defense. It earns this name because the defendant must make the case they acted in good faith in an attempt to comply with the law.
To establish this defense, the accused will need to show they made a good faith effort to comply with each paperwork requirement under federal law. This defense can be viable even when the employer did not fully comply with a technical or procedural requirement.
It is not enough to make an effort to follow the law. Once notified by the Department of Homeland Security of the deficiency, the defendant must correct that error within 10 days.
A key component of the good faith defense in NYC is that the accused was not aware that an employee was legally ineligible to work in the United States. If there is evidence—like text messages or documentation—that prove the accused knew about the worker’s legal status, this defense is not an option even if they corrected any paperwork deficiencies within 10 days.
Additional Consequences of a Conviction
Being found guilty of a federal crime comes with the potential for prison time and monetary fines. However, there are other consequences that can come into play in these cases. First and foremost, a criminal conviction can cause lasting damage to a person’s reputation. For a business owner, this damage could be enough to force them to close their company for good.
A business can suffer after this type of arrest and conviction. Legal proceedings and federal investigations can hamper a person’s ability to operate their company, which can lead to financial losses.
Finally, a conviction for employing an undocumented immigrant in NYC can be especially damaging to business owners who rely on government contracts. When a company is found to have violated immigration law, they are barred from securing these contracts in the future.
Talk to a New York Attorney About Federal Charges for Unlawful Employment of Illegal Aliens
Facing these criminal charges can be distressing under the best of circumstances. Hiring someone who cannot legally work in this country could lead to a lifetime of consequences.
Facing federal unlawful employment of illegal aliens charges in New York without a defense attorney is a mistake. The lawyers at the Law Offices of Jeffrey Lichtman could help you through this legal process and work hard to protect your freedom. Contact us today for a free consultation.