Alabama Immigration Law Top 10 Do’S And Don’T 8.15.11

1Capell & Howard, P.C. 2011

Top 10 DO’s and DON’T for Employers under the

Alabama Immigration Act

Thomas M. Eden, IIIAttorney

Capell & Howard, P.C.

Don’t knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within the State

of Alabama

DON’T knowingly employ, hire for employment, or continue to employ an unauthorized alien

to perform work within the State of Alabama

►You must verify the status of every new employee through the federal E-Verify procedures and fire unauthorized aliens.

DO enroll in E-Verify

DO enroll in E-Verify►Do schedule Form I-9 Supervisor

Training because the E-Verify system is only as good as the information collected.E-Verify is an employer’s only get out of

jail card with Immigration Compliance and Enforcement (ICE) and the only safe harbor under the Alabama Immigration Act.

17 states currently mandate E-Verify use, recently adding Georgia, Indiana, Louisiana, North Carolina, South Carolina, Tennessee and Virginia

DO Count the Cost

►State Contracting Obligations: Article 9 states, “as a condition for the award of any contract, grant or incentive by the state, any political subdivision thereof, or any state-funded entity to an employer that employs on or more employees, the employer shall not knowingly employ an illegal alien and shall attest to such, by sworn affidavit signed before a notary.”

State Contracting Obligations (cont.)

►Must provide documentation establishing E-Verify enrollment

►Must continue to use E-Verify throughout contract

►E-Verify every newly hired employee in accordance with federal rules and regulations

►It only takes one employee to require compliance

State Contracting Obligations (cont.)

►Sub-contractors same as for contractors except:Must attach to the sworn affidavit

documentation establishing that the sub-contractor is enrolled in the E-Verify program

Applies to any tier contractorNo liability for contractor if sub-

contractors sworn affidavit in good faith shows compliance

Direct knowledge of violation creates contractor liability in spite of affidavits

State Contracting Penalties►First Violation:

Contract voided and business license suspended for 60 days

Notice provided and opportunity to be heard

Attorney General may bring an action to suspend the business license and permits

Court shall order business entity to file signed sworn affidavit with the local District Attorney within 3 days

State Contracting Penalties (cont.)

Affidavit must state that the employer has terminated every unauthorized alien and that the business will not knowingly or intentionally employ an unauthorized alien in the state

Sworn affidavit must state E-Verify enrollment and must provide copy of Memorandum of Understanding

State Contracting Penalties (cont.)

►Second Violation:Contract to be terminated after providing

notice and opportunity to be heardAttorney General to bring action to

permanently revoke business licenses and permits of the employer

Same penalty and disqualification procedures apply to sub-contractors

Contractor enrolled in E-Verify shall be found not guilty of violation

Secretary of State shall reflect suspension of business license and permits to do business in Alabama

ICE Penalties► I-9 Penalties for Knowing Hire/Continuing to

Employ Violations Three Tiers of Violators - Penalty Amounts:

Standard Fine AmountKnowing Hire

and Continuing to

Employ Violations

First Tier

$375-$3,200

Second Tier

$3,200-$6,500

Third Tier$4,300-$16,000

0%-9% $375 $3,200 $4,30010%-19% $845 $3,700 $6,25020%-29% $1,315 $4,300 $8,20030%-39% $1,785 $4,850 $10,15040%-49% $2,255 $5,400 $12,100

50% or more $2,725 $5,950 $14,050

ICE Penalties► I-9 Penalties for Substantive and

Uncorrected Technical Violations for each I-9 Form:

Standard Fine AmountSubstantive Verification Violations

1st Offense$110-$1100

2nd Offense$110-$1100

3rd Offense +$110-$1100

0%-9% $110 $550 $110010%-19% $275 $650 $110020%-29% $440 $750 $110030%-39% $605 $850 $110040%-49% $770 $950 $1100

50% or more $935 $1100 $1100

DO terminate any employee if you become aware of their

illegal status

DO terminate any employee if you become aware of their

illegal status►The employer could face severe

penalties involving probation and suspension of business license.

Article 15 – Any Employer Penalties

►Any Alabama employer who is found to have knowingly employed an illegal alien or continued to employ after April 1, 2012

►Mandated that E-Verify be used►First Violation:

By a court of competent jurisdiction Order the termination of the unauthorized

alien Three year probation period for the business File quarterly reports with the local District

Attorney for each newly hired employee

Article 15 – Any Employer Penalties (cont)

Must file signed, sworn affidavit with local District Attorney within 3 days that employer has terminated every unauthorized illegal alien and will not knowingly hire in the future

Direct the state, county or city to suspend the business license and permits for a period not to exceed 10 days at the location where the unauthorized alien performed work

Before business license reinstated, employer shall submit to the court a signed, sworn affidavit that in compliance with E-Verify Memorandum of Understanding

Business license reinstated 1 day after above is completed

Article 15 – Any Employer Penalties (cont)

►Second Violation: Court shall direct the state, county or city

to permanently revoke all business licenses and permits where the illegal unauthorized alien worked

►Subsequent violations:Court shall direct the governing bodies to

forever suspend the business licenses and permits throughout the State of Alabama

Throughout the proceedings good faith compliance with E-Verify is a defense

DON’T deduct from state income or business taxes

any wages, compensation or remuneration of any kind,

whether monetary or otherwise, for services paid

to an unauthorized alien

DON’T deduct►A business entity or employer who

knowingly fails to comply will be liable for a penalty equal to 10 times the business expense deduction claimed.

DON’T discriminate

DON’T discriminate►An employer may be liable for failure to

hire a job applicant who is a United States citizen, or who is an alien authorized to work in the United States, while retaining any employee who the employer knows, or reasonably should have known, is an unauthorized alien.

►The employer can be sued by the unsuccessful applicant in an Alabama civil action for discrimination under Section 17 and awarded compensatory relief, court costs and reasonable attorney’s fees.

DON’T enter into contracts with illegal aliens

►The Act provides that no court shall enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unlawfully present in the United States.

DON’T pick up day labor in your vehicle

►The Act makes it illegal to stop a vehicle on a street, roadway or highway “to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.”

►This applies regardless of citizenship or alien status.

DON’T house an illegal alien

DON’T house an illegal alien►It is illegal to “conceal, harbor, or

shield” an alien from detection in any place, including any building or vehicles, if the person knows or recklessly disregards that the alien is illegal in the United States.

►Similarly, it is illegal to induce an alien to come to or reside in Alabama if the person knows or recklessly disregards the fact that the alien will be in violation of federal law.

DON’T transport an illegal alien

►It will be illegal to transport an alien “in furtherance of the unlawful presence of the alien in the United State, knowingly or in reckless disregard to the fact that the alien has com to, entered, or remained in the United States in violation of federal law.”

DON’T rent to an illegal alien

►It is illegal to harbor an unlawful alien by entering into a rental agreement with the alien, if the person knows or recklessly disregards the fact that the alien is in the United States illegally.

Benefits of Immigration Compliance

Immigration To Do List for Employers

Enroll in E-Verify at: https://e-verify.uscis.gov/enroll/StartPage.aspx?JS=YES

Schedule I-9 Supervisor Training because the E-

Verify system is only as good as the information collected on your I-9 forms – must be retained as before;

Put an E-Verify policy in your employee handbook;

Conduct I-9 Audit for all past hires - with professional signoff that you are currently in compliance;

Build a paper trail with all SSA no match employees or “unable to determine work eligibility” from I-9 Audit; and

Stay informed Judge Blackburn Hearing August 24 9:00am.

How to Contact Speaker:Tommy Eden

Attorney at Law

TEL: (334) 241-8030FAX: (334) 501-4512

E-Mail: tme@chlaw.comBlog: www.alabamahrlaw.blogspot.com

Website: www.capellhoward.com

150 South Perry Street

Montgomery, AL 36104

3120-B Frederick Road

Opelika, AL 36801

Alabama Immigration Law Top 10 Do’S And Don’T 8.15.11

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