Immigration Compliance —Fiorenza

The employer must also advise the employee of the date that the employer received the no-match letter and advise him/her to resolve the discrepancy with the SSA within 90 days of that date.

Obligations Upon Receipt of DHS Letter

If the employer receives the letter from DHS, described above, the employer must contact the local DHS office (in accordance with the written notice’s instructions, if any) and attempt to resolve the question raised by DHS about the immigration status document or employment authorization document. The employer must complete this step within 30 days of receiving the written notice.

If the employer is unable to verify with DHS within 90 days of receiving the written notice that the immigration status document or employment authorization document is assigned to the employee, the employer must again verify the employee’s employment authorization and identity. In other words, the employer must complete a new Form I-9 for the employee, using the same procedures as if the employee were newly hired, except that the employer must not accept any document referenced in any written notice.

Ultimately, if the discrepancy referred to in the no-match or DHS letters is not resolved, the employer must either terminate the employee or risk the DHS citing the employer for “constructive knowledge” that the employee was not authorized to work in the United States.

“Constructive Knowledge” of Unauthorized Worker

There are severe civil and criminal penalties for employers under such circumstances. Civilly, it could be fined up to $2,200 for the first offense, from $2,200 to $5,500 for the second offense, and from $3,300 to $11,000 for all subsequent offenses. In addition, employers who “knowingly” hire or continue to employ unauthorized workers are barred from entering into federal contracts for one year.

On the criminal side, employers that engage in a “pattern or practice” of knowingly hiring or continuing to employ unauthorized workers may be prosecuted in criminal proceedings. In such cases, they can be fined not more than $3,000 for each unauthorized worker, imprisoned for more than six months, or both.

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