Presently there are thousands of foreign workers in the United States in multiple occupations and under a number of employment categories authorized by the USCIS. For each employment category, there are varying requirements, conditions and periods of authorization. An individual who works outside the scope of his or her employment authorization removed or denied re-entry into the United States. There are currently no criminal penalties for engaging in unauthorized employment; however, for employers there are criminal penalties for noncompliance.
Charges of hiring unauthorized workers can carry significant penalties for an employer. Obtaining experienced counsel as soon as possible can reduce risk and potential exposure to civil and criminal penalties.
In addition to crime of hiring unauthorized workers, a number of related offenses can arise such as violations of tax law, harboring illegal aliens, and fraud. These charges often stem from situations where an employer hires unauthorized workers using fraudulent documentation or willfully ignores the use of these documents.
One of the primary criminal schemes related to employing unauthorized workers relates to concealing the fact the employer has engaged in the practice of hiring illegal workers.
A number of ancillary crimes can stem from hiring illegal workers. These can include:
• Encouraging and Harboring Illegal Aliens: It is a violation of law for any person to conceal, harbor, or shield from detection in any place, including any building or means of transportation, any alien who is in the United States in violation of law.
• Tax Crimes: Employers who aid or abet the preparation of false tax returns by failing to pay income or Social Security taxes for illegal alien employees, or who knowingly make payments using false names or Social Security numbers, are subject to IRS criminal and civil sanctions.
8 U.S. Code § 1324a states:
(a) Making employment of unauthorized aliens unlawful
(1) In general
It is unlawful for a person or other entity—
(A) to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3) of this section) with respect to such employment, or
(i) to hire for employment in the United States an individual without complying with the requirements of subsection (b) of this section or
(ii) if the person or entity is an agricultural association, agricultural employer, or farm labor contractor (as defined in section 1802 of title 29), to hire, or to recruit or refer for a fee, for employment in the United States an individual without complying with the requirements of subsection (b) of this section.
(2) Continuing employment
It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.
According to the Immigration Nationality Act, a company that “knowingly” uses illegal workers can be fined as much as $10,000 per worker. The employer also can face up to six months in jail if a pattern of violating the law is found. Also, a conviction for “harboring” illegal workers (knowingly employing 10 or more individuals with illegal status in a 12-month period) can lead to imprisonment of up to 10 years.
Defending an unauthorized employment case can approach the intent element of the law. The intent element rests on the employers’ knowledge of an immigrant’s status or can encompass constructive knowledge that an employee is an illegal unauthorized worker if a reasonable person would infer it from the facts.
• According to a New York Times article dated June 17, 2013, Federal authorities seized 14 7-Eleven stores on Long Island and in Virginia, arresting nine owners and managers, and seized property, including five homes. The illegal scheme involved, defendants, recruited more than 50 illegal immigrants and gave them identities stolen from American citizens, including children and dead people. The employees were alleged to have worked for 100 hours a week, paid for a fraction of their time, and were forced to live in substandard housing.
• According to a Business Insider article published on April 26, 2014, an indictment filed in federal court recently alleges New York City Congressman Michael Grimm broke a litany of laws to maximize profits while he ran a health food restaurant on Manhattan's Upper East Side from 2007 to 2010. Grimm's alleged "schemes" include hiding over $1 million in earnings to pay lower taxes and knowingly hiring undocumented immigrants. The indictment includes 20 different charges against Grimm relating to the restaurant including "conspiracy to defraud the United States," multiple counts of mail and wire fraud, "unlawful employment of aliens," and perjury.