Excerpts from the U.S. legal
code referring to hiring illegal aliens.*
Federal Immigration and Nationality Act
Section 8 USC 1324(a)(1)(A)(iv)(b)(iii)
"Any person who…encourages or induces an
illegal alien to…reside…knowing or in reckless disregard of
the fact that such…residence is…in violation of law, shall be
punished as provided… for each illegal alien in respect to
whom such a violation occurs…fined under title 18…imprisoned
not more than 5 years, or both."
Section 274 felonies under the federal Immigration and
Nationality Act, INA 274A(a)(1)(A):
A person (including a group of persons, business,
organization, or local government) commits a federal felony
when she or he:
- assists an illegal alien
s/he should reasonably know is illegally in the U.S. or who
lacks employment authorization, by transporting,
sheltering, or assisting him or her to obtain employment,
or
- encourages that illegal
alien to remain in the U.S. by referring him or her to an
employer or by acting as employer or agent for an employer
in any way, or
- knowingly assists illegal
aliens due to personal convictions.
Penalties upon conviction
include criminal fines, imprisonment, and forfeiture of
vehicles and real property used to commit the crime. Anyone
employing or contracting with an illegal alien without
verifying his or her work authorization status is guilty of a
misdemeanor. Aliens and employers violating immigration laws
are subject to arrest, detention, and seizure of their
vehicles or property. In addition, individuals or entities
who engage in racketeering enterprises that commit (or
conspire to commit) immigration-related felonies are subject
to private civil suits for treble damages and injunctive
relief.
Recruitment and Employment of Illegal
Aliens
It is unlawful to
hire an alien, to recruit an alien, or to refer an illegal
alien for a fee, knowing the illegal alien is unauthorized to
work in the United States. It is equally unlawful to continue
to employ an illegal alien knowing that the illegal alien is
unauthorized to work.
It is unlawful to hire any individual for employment in the
United States without complying with employment eligibility
verification requirements. Requirements include examination
of identity documents and completion of Form I-9 for every
employee hired. Employers must retain all I-9s, and, with
three days' advance notice, the forms must be made available
for inspection. Employment includes any service or labor
performed for any type of remuneration within the United
States, with the exception of sporadic domestic service by an
individual in a private home. "Day laborers" or other casual
workers engaged in any compensated activity (with the above
exception) are employees for purposes of immigration law. An
employer includes an agent or anyone acting directly or
indirectly in the interest of the employer. For purposes of
verification of authorization to work, employer also means an
independent contractor, or a contractor other than the person
using the illegal alien labor.
The use of temporary or short-term contracts cannot be used
to circumvent the employment authorization verification
requirements. If employment is to be for less than the usual
three days allowed for completing the I-9 Form requirement,
the form must be completed immediately at the time of hire.
An employer has constructive knowledge that an employee is an
illegal unauthorized worker if a reasonable person would
infer it from the facts. Constructive knowledge constituting
a violation of federal law has been found where (1) the I-9
employment eligibility form has not been properly completed,
including supporting documentation, (2) the employer has
learned from other individuals, media reports, or any source
of information available to the employer that the alien is
unauthorized to work, or (3) the employer acts with reckless
disregard for the legal consequences of permitting a third
party to provide or introduce an illegal alien into the
employer's work force. Knowledge cannot be inferred solely on
the basis of an individual's accent or foreign appearance.
Actual specific knowledge is not required. For example, a
newspaper article stating that ballrooms depend on an illegal
alien work force of dance hostesses was held by the courts to
be a reasonable ground for suspicion that unlawful conduct
had occurred.
It is illegal for nonprofit or religious organizations to
knowingly assist an employer to violate employment sanctions,
regardless of claims that their convictions require them to
assist illegal aliens. Harboring or aiding illegal aliens is
not protected by the First Amendment. It is a felony to
establish a commercial enterprise for the purpose of evading
any provision of federal immigration law. Violators may be
fined or imprisoned for up to five years.
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
illegal alien who is in the United States in violation of
law. Harboring means any conduct that tends to substantially
facilitate an alien to remain in the U.S. illegally. The
sheltering need not be clandestine, and harboring covers
aliens arrested outdoors, as well as in a building. This
provision includes harboring an alien who entered the U.S.
legally but has since lost his legal status.
An employer can be convicted of the felony of harboring
illegal aliens who are his employees if he takes actions in
reckless disregard of their illegal status, such as ordering
them to obtain false documents, altering records, obstructing
INS inspections, or taking other actions that facilitate the
alien's illegal employment. Any person who within any
12-month period hires ten or more individuals with actual
knowledge that they are illegal aliens or unauthorized
workers is guilty of felony harboring. It is also a felony to
encourage or induce an alien to come to or reside in the U.S.
knowing or recklessly disregarding the fact that the alien's
entry or residence is in violation of the law. This crime
applies to any person, rather than just employers of illegal
aliens. Courts have ruled that "encouraging" includes
counseling illegal aliens to continue working in the U.S. or
assisting them to complete applications with false statements
or obvious errors. The fact that the alien is a refugee
fleeing persecution is not a defense to this felony, since
U.S. law and the UN Protocol on Refugees both require that a
refugee must report to immigration authorities without delay
upon entry to the U.S.
The penalty for felony harboring is a fine and imprisonment
for up to five years. The penalty for felony alien smuggling
is a fine and up to ten years' imprisonment. Where the crime
causes serious bodily injury or places the life of any person
in jeopardy, the penalty is a fine and up to twenty years'
imprisonment. If the criminal smuggling or harboring results
in the death of any person, the penalty can include life
imprisonment. Convictions for aiding, abetting, or conspiracy
to commit alien smuggling or harboring, carry the same
penalties. Courts can impose consecutive prison sentences for
each alien smuggled or harbored. A court may order a
convicted smuggler to pay restitution if the illegal alien
smuggled qualifies as a victim under the Victim and Witness
Protection Act. Conspiracy to commit crimes of sheltering,
harboring, or employing illegal aliens is a separate federal
offense punishable by a fine of up to $10,000 or five years'
imprisonment.
Enforcement
A person or
entity having knowledge of a violation or potential violation
of employer sanctions provisions may submit a signed written
complaint to the INS office with jurisdiction over the
business or residence of the potential violator, whether an
employer, employee, or agent. The complaint must include the
names and addresses of both the complainant and the violator,
and detailed factual allegations, including date, time, and
place of the potential violation, and the specific conduct
alleged to be a violation of employer sanctions. By
regulation, the INS will only investigate third-party
complaints that have a reasonable probability of validity.
Designated INS officers and employees, and all other officers
whose duty it is to enforce criminal laws, may make an arrest
for violation of smuggling or harboring illegal aliens.
State and local law enforcement officials have the general
power to investigate and arrest violators of federal
immigration statutes without prior INS knowledge or approval,
as long as they are authorized to do so by state law. There
is no extant federal limitation on this authority. The 1996
immigration control legislation passed by Congress was
intended to encourage states and local agencies to
participate in the process of enforcing federal immigration
laws. Immigration officers and local law enforcement officers
may detain an individual for a brief warrantless
interrogation where circumstances create a reasonable
suspicion that the individual is illegally present in the
U.S. Specific facts constituting a reasonable suspicion
include evasive, nervous, or erratic behavior; dress or
speech indicating foreign citizenship; and presence in an
area known to contain a concentration of illegal aliens.
Hispanic appearance alone is not sufficient. Immigration
officers and police must have a valid warrant or valid
employer's consent to enter workplaces or residences. Any
vehicle used to transport or harbor illegal aliens, or used
as a substantial part of an activity that encourages illegal
aliens to come to or reside in the U.S. may be seized by an
immigration officer and is subject to forfeiture. The
forfeiture power covers any conveyances used within the U.S.
RICO —Citizen Recourse
Private persons and entities may initiate
civil suits to obtain injunctions and treble damages against
enterprises that conspire to or actually violate federal
alien smuggling, harboring, or document fraud statutes, under
the Racketeer-Influenced and Corrupt Organizations (RICO).
The pattern of racketeering activity is defined as commission
of two or more of the listed crimes. A RICO enterprise can be
any individual legal entity, or a group of individuals who
are not a legal entity but are associated in fact, and can
include nonprofit associations.
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. U.S. nationals who have suffered
intentional discrimination because of citizenship or national
origin by an employer with more than three employees may file
a complaint within 180 days of the discriminatory act with
the Special Counsel for Immigration-Related Unfair Employment
Practices, U.S. Department of Justice. In addition to the
federal statutes summarized, state laws and local ordinances
controlling fair labor practices, workers compensation,
zoning, safe housing and rental property, nuisance,
licensing, street vending, and solicitations by contractors
may also apply to activities that involve illegal aliens.