Explain This, If You Can!

It’s illegal to employ Aliens…. Sanctions for Employment of Illegals http://apmp.berkeley.edu/images/stories/LawsandAgencies/irca.emplsanctions.cr s.pdf The Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE) is authorized to conduct investigations to determine whether employers have violated the prohibitions against knowingly employing unauthorized aliens and failing to properly complete, present or retain Employment Eligibility Verification forms (Form I-9) for newly hired individuals. Any person or entity may file a signed complaint alleging a violation of INA § 274(A) with the ICE office having jurisdiction over the business or residence of the alleged violator. The complaint must contain specific information as to both the complainant and the potential violator and detailed factual allegations including the date, time and place of the alleged violations or conduct alleged to constitute a violation of the act. ICE may conduct an investigation for violations on its own initiative or as a result of having received a complaint. If ICE determines after an investigation that there has been a violation, ICE may issue and serve a Notice of Intent to Fine, or a Warning Notice. Emplo yer s who fail t o p roperly comple te, re tain, an d/ or p resen t F orms I-9 f or inspec ti on as r equired b y la w ma y b e su bject t o a civil pen alty for vi olations ranging fr om $ 11 0 - $1 ,100 pe r empl oyee whose F orm I9 i s n ot pr ope rly comple ted, re tained, a nd/ or p resent ed .18 Factors considered in setting the fine level are the size of the business, the employer’s good faith, the severity of the violation, and the employer’s history. Also, the Attorney General can bring a district court action seeking equitable relief (i.e., permanent injunction, etc.). For a violation of INA § 274A(a)(1)(A) or (a)(2), an employer can face: (1) $275 - $2200 fine for each unauthorized individual;20 (2) $2,200 - $5,500 for each employee if the employer has previously been in violation;21 (3) $3,300-$11,000 for each individual if the employer was subject to more than one cease and desist order.22 Under INA § 274A(f), employers convicted of having engaged in a pattern or practice of knowingly hiring unauthorized aliens or continuing to employ aliens knowing that they are or have become unauthorized to work in the United States, after November 6, 1986, (e.g. expiration of work authorization), may be fined up to $3,000 per unauthorized employee and/or face up to six months of imprisonment.

…Or Is It??? How to Pay Undocumented Aliens With Wage Claims While an undocumented alien generally cannot recover front pay in employment litigation, an yone, document ed or n ot, i s generally en titled t o reco ver wage s du e f or actu al labor p er formed, e ven if the y laborer la cked the requisit e p aper s f or la wful emplo yment. Employers who discover that they owe wages to undocumented aliens often do not know how to process the payroll

without a valid social security number. There is, however, a way to do it. The employee needs to obtain an individual taxpayer identification numbers (ITIN). Since Ma y 29, 1 996, t he IRS ha s as signed ITINs t o aliens w ho a re other wis e ine ligible f or S SN s bu t who need t axpa yer iden ti fication number s f or t ax pur poses. 6 1 F ed. R eg. 26,78 8. A v alid ITIN i s a ninedigit number , l ik e a social secu rity number or an y t axpa yer identif ication numbe r, an d alw ays begins wi th a 9. An ITIN is a t ax pr oces sing numbe r f or bo th resid ent and nonre sident aliens, a s w ell as t heir spou ses a nd de penden ts . It can be used only for income tax purposes. It does not entitle them to social security benefits or the earned income tax credit. It does not create any inferences regarding their immigration status. It bestows upon them no right to work in the U.S. Aliens must apply for an ITIN on IRS Form W-7 (Application for IRS Individual Taxpayer Identification Number). IRS Tax Topic 857. The application must show a federal tax purpose for seeking the ITIN. In most cases, this will require attaching a federal tax return to the most current revision of the Form W–7 available. Along with the completed Form W-7, they will submit identity documents, and either a federal tax return, or other documentation to show the federal tax purpose for which they need the ITIN. The identity documents are needed to verify both identity and foreign status; one must include a recent photograph. If one submits an original valid passport (or a notarized or certified copy of a valid passport) there is no need to submit any other documents. If one does not submit a passport document, one must provide a combination of documents (at least two or more) that are current and that (1) verify identity (that is, contains a name and a photograph), and (2) support your claim of foreign status. If the ITIN is for a dependent, the documentation must prove that the dependent lives in the United States, Mexico, Canada, Japan, The Republic of Korea, and India. If the dependent is a minor, the documentation must establish the relationship between the dependent and the representative signing the application on the dependent's behalf. Such documentation could include a birth certificate, adoption papers, or other court-appointed papers showing legal guardianship. In addition to a passport, examples of acceptable documentation include: national identification card (showing photo, name, current address, date of birth and expiration date); civil birth certificate; foreign driver's license; or visa. A complete list of acceptable documentation can be found in the instructions to the Form W-7. The documents must be originals or certified copies. Aliens can apply for an ITIN by mail or in person at most IRS offices in the United States. If they apply in person, the documents will be reviewed and returned to them. Publication 1915, Understanding Your IRS Individual Taxpayer Identification Number, has a list of IRS offices abroad which can accept Form W–7. If applying by mail, use the address shown in the Form W–7 instructions and in Publication 1915. If the original documents have not been returned within 60 days, call 1–800–829– 1040 (in the United States), or 1–215–516–2000 (outside the United States), to find out about the status. It takes approximately 4 to 6 weeks for the IRS to notify the application in writing of his or her ITIN. For more information, refer to

Publication 1915. You may also want to obtain Publication 519, U.S. Tax Guide for Aliens. For information about who qualifies to be claimed as a dependent, refer to Topic 354.