Mark Pestronk
Q: My agency employs destination-specialist advisors who may not be authorized to work in the U.S., either because they came here on tourist visas or overstayed their work visas. We also have independent contractors who may have the same issues. They are all good workers, and I would like to keep them. Could we be fined or even prosecuted? I have read that some who have overstayed visas have been deported, but I haven't read that the government has gone after employers. What are my risks? What are my workers' risks? What should I do about this problem?
A: As soon as possible, you should consult an attorney who specializes in immigration law for employers. Immigration law is a highly specialized area of law, and only specialists are able to keep up with the latest enforcement developments and assess your particular risks.
The immigration lawyer that I have consulted in the past is David Garfield in Washington. He has helped travel agency clients of mine over the years.
In the meantime, here is some general guidance: All employees, regardless of their immigration status, must complete an I-9 Form to verify their eligibility to work in the U.S. This applies to foreign-born employees as well as those who seem obviously native-born.
If you failed to get a completed I-9 or didn't even know about the requirement to get one, you could be fined up to $5,500 per unauthorized employee. This requirement does not apply to bona fide independent contractors, but if the government determines that your ICs should be reclassified as employees, you could also be fined for not getting I-9s from them.
Regardless of whether you get an I-9, you could be fined up to $11,000 per worker or even imprisoned up to six months for knowingly continuing to employ a person who is not authorized to work.
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Early this year, the Trump administration announced a coming crackdown on employers that employ undocumented workers, including those with no authorization to work. So far, with sporadic exceptions, the crackdown has not come to pass.
As for your employees, it is a tough situation. With rare exceptions, an employee who overstayed their visa has to return home before applying for a work visa.
It gets worse: If the employee has been here for 180 days to one year without authorization, the employee will be barred from re-entry to the U.S. for three years. If the employee has been here for one year or more without authorization, the employee will be barred from re-entry to the U.S. for 10 years.
If an employee is nearing the end of their visa, they can apply for an extension, and they can usually stay for up to eight months while the government decides whether to grant the extension, but there have been reports that some of those workers have been deported anyway.
All of these risks and penalties make it even more imperative for me to end with the same advice I began with: consult an immigration lawyer as soon as possible.