Most of the media focus on undocumented workers centers on those that cross the border. Federal law enforcement, however, is equally interested in the actions of those that hire undocumented workers. If you are found to have employed or aided an undocumented worker, there are a number of federal charges you could face.
There are steps you can take to secure your business against these allegations. If an investigation comes, your focus should shift to defeating those charges. A violation of federal immigration laws can carry steep penalties for anyone that employs an undocumented worker. If you face these charges in the Houston area, call attorney Doug Murphy as soon as possible.
Federal Immigration Crimes That Apply to Employers in Texas
Most prosecutions against employers accused of hiring undocumented aliens are charged under 8 U.S.C. Section 1324. This broad statute outlaws a number of acts involving the hiring or assistance of undocumented workers.
These statutes apply to anyone involved in the process of hiring or recruiting an undocumented worker. In addition to the owner of the business, this statute applies to any agents or employees of the business who commit the crime.
Unlawful Employment of Undocumented Workers
The most common charge under this statute is known as the unlawful employment of undocumented workers. Governed by 8 U.S.C. Section 1324a, this statute targets those who employ undocumented workers. This statute only applies to those that knowingly hire an undocumented person – hiring someone with a good faith belief that they are authorized to work in the United States is not a crime.
This statute applies to more than just the direct employer of an unauthorized immigrant. It is unlawful to recruit or refer an undocumented worker to a position for a fee. It is also illegal to allow an undocumented worker to remain employed when you determine they are in the country illegally, even if you had a good faith belief they were here legally when you hired them.
The consequences of hiring undocumented workers start with a civil penalty for each offense. You could face a penalty of $375 for your first offense. The penalty goes up to $1,600 for a third or subsequent violation. If the courts determine you have engaged in a pattern of employing undocumented workers, the penalty increases to $3,000 per person. More importantly, you could also face up to six months in federal prison.
Harboring an Alien
The crime of harboring an alien is not specific only to employers, but in many cases, it can apply in a workplace setting. According to federal law, harboring an alien involves any action that shields an undocumented immigrant from detection. This could cover anything from providing them with a place to stay to transporting them in an effort to avoid their detection.
The standard for harboring is lower than employing an undocumented immigrant. For harboring, you could be convicted if you knew the person you were helping had entered the country illegally. However, you could also face charges if you were in reckless disregard of the fact.
A conviction for harboring could carry a jail term of five years in federal prisons in most cases. However, if the act was done for the purposes of private financial gain or commercial advantage, the maximum prison sentence doubles to ten years.
Inducing an Alien
Encouraging or inducing a person to enter the country unlawfully is also a crime. If an employer does this in an effort to meet their labor needs, they could face criminal liability. This part of the statute is broad, as it applies to more than just those people who directly induce a person to enter the country illegally. It also applies to anyone that conspires with, aides, or abets anyone that induces an undocumented worker to enter the country.
Like with harboring, the penalty for inducing an alien is a maximum of five years in prison. However, if that inducement was made for commercial purposes, the maximum sentence rises to 10 years behind bars.
Fraud routinely plays a major role when it comes to undocumented workers in the workplace. Employers are required to provide social security numbers or other documentation for each employee. In many cases, these workers provide falsified or stolen identifying information in order to obtain employment.
In many cases, the employer is unaware of the fraud. It is possible for an employer to take an active role in helping their employee obtain fraudulent credentials, however.
If an employer or one of their agents assists a worker in any way with falsifying their identity, they could face federal fraud charges. The specific charge they face could depend on how the fraud occurred. For example, if the employer uses the mail to file these fraudulent documents, they could be on the hook for mail fraud.
RICO Act Violations
The RICO Act has also become an important factor in immigration law. Originally enacted to take on organized crime, the RICO Act is now used by prosecutors to take down large organizations dedicated to harboring undocumented workers and supplying them to businesses.
The RICO Act allows federal prosecutors to pursue charges against individuals involved in large criminal schemes, even if they only played a small part in it. This is true even if the acts they took would not have otherwise been unlawful.
RICO can apply to employers in many ways. For example, an employer that works with third-party recruiters to induce, transport, and hire undocumented workers for their business could face prosecution for RICO charges. This is true even if the third-party was directly responsible for all the immigration violations outside of hiring illegal immigrants. While rare, RICO prosecutions could carry significant penalties.
When Workers Use False Identities
As mentioned previously, many workers rely on fraudulent or stolen identities to obtain employment. When it comes to a charge employing an undocumented worker, there are limits on an employer's criminal liability where fraud is involved.
An employer only has to make a good faith effort to root out fraud during the hiring process. It is typically enough for the employer to collect a social security number from the worker and ensure that it is valid. While these basic steps might serve as a defense, it will not protect an employer who knows a worker is undocumented.
The Use of Independent Contracts
It is a common misconception that an employer can shield themselves from criminal prosecution by only hiring independent contractors. This is not the case. It is true that an employer has no obligation to determine if a person is authorized to work in the United States when they hire them. While this provides an employer with some defense should it turn out their contract is undocumented, it does not absolve them completely. If an employer knows or has reason to believe their independent contractor is working without documentation, they could still face criminal liability for hiring them.
How a Houston Immigration Crimes Lawyer Could Help
When it comes to employers, federal law provides some powerful defenses when it comes to federal immigration offenses. It is a defense for many of these charges to make a good faith effort to ensure you are not hiring someone without documentation. Despite these defenses, it is still possible to face criminal charges when you least expect it.
Attorney Doug Murphy is an experienced criminal defense lawyer. He has built a reputation as a fearless litigator, and he is confident facing down the federal government. If you are facing charges of federal immigration offenses, contact the Doug Murphy Law Firm, P.C. right away.