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Foreign Affairs

What Every Small Business Should Know about Immigration

Joseph Curran

Joseph Curran


Every small business should understand the basic rules about its responsibilities under the immigration laws, and also the growth opportunities available under immigration laws.
Employer responsibilities are the first concern of a small business. The 1986 Immigration Reform and Control Act (IRCA) requires every employer to verify that all employees have proper work authorization — every single employee. The centerpiece of this system is the I-9 form, which employers must complete within three days of the start of work for each employee. Typically, each new employee must present photo identification and proof of employment authorization, with original, unexpired documents. Employers are not required to keep copies of the documents on file. A properly completed I-9 is all that is required.
It is not your job to make an actual determination whether the documents are legitimate. You are not an authorized Department of Homeland Security investigator. If you check the papers and fill out the form, and it turns out that the worker is illegal, you face no liability. The standard for reviewing the documents is “…reasonably appears on its face to be genuine.” Do not request more or different documents than the minimum required. The employee, not the employer, chooses which documents to present.
The employment verification regulations (the so-called ‘I-9 rules’) cover only true employees, not independent contractors. As in the area of workers’ comp, whether an individual or entity is an independent contractor is determined on a case-by-case basis — there are no bright line rules. The term ‘independent contractor’ includes those who “carry on independent business, contract to do a piece of work according to their own means and methods, and are subject to control only as to results.” In most cases, a company would have no obligation to check the immigration documents its subcontractors’ employees.
Violations of the employment-verification rules through a contract situation must be ‘knowing.’ This includes constructive knowledge and failure to exercise reasonable care in learning about and implementing immigration rules.
Beware of employment discrimination. An employer cannot selectively hire, or refuse to hire, nationals from certain countries. That practice is called ‘national origin discrimination’ under both federal employment-discrimination law and immigration law. Various federal statutes intersect on this issue; 8 U.S.C. § 1981 and Title VII apply to non-citizens, and prohibit discrimination on the basis of national origin.
IRCA adds another layer by prohibiting discrimination on the basis of national origin and citizenship in hiring and firing employees. IRCA violations are known by the legal acronym UIREP (unfair immigration-related employment practices). Employers may require only the minimum identity and employment documents outlined in the I-9 handbook. Employers may not require any specific or additional documentation. The UIREP provisions were added to temper the effect of IRCA on aliens who have proper work authorization. Congress did not want employers to stop hiring foreigners or people with accents out of fear of accidentally hiring an illegal alien.
Civil penalties for failure to fill out and maintain I-9s correctly can range from $110 to $1,100 for each I-9. Civil penalties for employment of unauthorized aliens can range from $275 to $2,200 per alien for the first offense, $2,200 to $5,500 for the second offense, and up to $3,300 to $11,000 per alien for the third or higher offense. Criminal penalties may be imposed in cases involving pattern or practice violations.
The Immigration Service (USCIS) has also implemented E-Verify, a Web-based verification tool that employers can use to check the visa status of potential employees, using information from USCIS and the Social Security Administration databases. E-Verify began as a voluntary program, but now government employers and government contractors, as well as some private employers, are required to use the program as part of their I-9 verification system.
IRCA enforcement is not consistent. Unless there is a pattern of violations, or you are unlucky enough to be targeted for a politically motivated ‘raid,’ you are not likely to be audited, and the penalties for IRCA violations are relatively mild. In fact, current INS policy favors a warning letter before fines are assessed. The goal of this policy is to educate employers and encourage them to correct problems without litigation. There are simply too many employers hiring foreign nationals for USCIS to keep track of them.
But keep in mind that this is all about politics, and the prevailing sentiment is strongly anti-immigrant. Any comprehensive immigration legislation that passes Congress will almost certainly include provisions to increase enforcement of the IRCA/I-9 rules.
In addition to the ‘defensive’ immigration concerns with I-9 compliance, employers should also consider the potential benefits available under the immigration laws.
If you have identified a skilled international professional who can help your business grow, there are employment visas available that will allow this worker to lawfully join your company. Because of the recent economic downturn, the numerical restrictions on these visas have disappeared, and the visa petition process is relatively straightforward. Keep in mind that the employer is the visa petitioner, not the foreign national. It is a process based on promises by the organization, not by the worker. Clearly, the worker gains a benefit from the visa petition, but the procedure must be initiated by, and controlled by, the employer.
The most common employment visa is the H-1B visa, but there are employment opportunities under a variety of visa classifications, including L-1, E-1/2, J-1, O-1, and other visas.

Joseph Curran, a partner with Northampton-based Curran & Berger LLP, has been exclusively involved in the practice of immigration and nationality law since 1985. He provides legal advice to individuals, corporations, and universities, specializing in immigration issues impacting business and health care in the New England area. He currently serves on the AILA Healthcare Committee and the Mass. Bar Assoc. Immigration Law Section, chairing the MBA’s Immigration Essentials Program.