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).

Talk to a New York Attorney About Federal Charges for Unlawful Employment of Illegal Aliens

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.

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