The right to employment for individuals who are qualified for a job is preserved in the Immigration Reform and Control Act (IRCA), and it’s implemented by the Immigration and Naturalization Service. Understanding the provisions of the IRCA can be tricky for a layman but top employment law firms in California can help.
All Americans have a right to be employed as long as they qualify for a vacant position. Employers are prohibited from hiring (for a fee) job applicants who are not permitted to work in the U.S. The law was implemented to fight illegal immigration. You should consult top employment law firms in California to legally protect yourself as an employer.
I-9 Audit and Strategic Compliance
Americans have a right to employment as per the IRCA but employers must verify their employees’ eligibility for employment. Employee verification is provided for in Section 274a.2 of the Immigration and Nationality Act (INA) requiring such verifications to be done using Form I-9.
Employing unauthorized employees is an employment violation and is considered a prosecutable crime with serious penalties. The Immigration and Customs Enforcement ensures that all employers abide by the provisions of the IRCA and the INA by either issuing notices of inspection to employers or conducting impromptu I-9 audits.
Mistakes or deficiencies identified by I-9 audits must be rectified within 10 business days before the ICE issues a clean bill of health. The following points can help employers develop a strong strategy to avoid the negative consequences of violating the provisions of the IRCA and the INA:
1. Seek Legal Counsel
You should hire an attorney after receiving a notice of inspection because an unfavorable I-9 audit can attract severe penalties, such as criminal prosecution and business sanctions, particularly if you knowingly violated the law.
An employment attorney can help you stay compliant by completing the I-9 forms and other relevant documents. Your attorney will also provide legal advice on the consequences of non-compliance with the IRCA and the INA and how it impacts your business.
2. Learn the Triggers of I-9 Audits
The triggers for I-9 audits can include:
- Complaints from former or current employees;
- Mistreated job seekers’ tipoffs;
- Negative reviews of past I-9 data;
- Employees’ tipoff’s; and
- Routine I-9 audits by the government;
It’s important to understand the trigger for your I-9 audit and the extent of the violation to develop an appropriate response to address noncompliance.
3. Evidence Possessed by the ICE
Employers and their legal teams should strive to know the information possessed by the ICE to develop a strong defense strategy. Also, you can work on the non-compliance immediately if you know why the notice of inspection was issued.
4. Avoid Criminal Prosecution at All Costs
The immediate goal should be avoiding a criminal charge and a subsequent prosecution if you’re guilty of non-complying with the IRCA or ICA. Your legal team should develop a strategy to help you avoid prosecution after considering the facts of your case, including the triggers of the NOI, the focus area of the audit, and the available remedies.
Employers should be proactive to ensure they comply with the provisions of the ICRA and the ICA in maintaining I-9 data.