Many in the restaurant industry are familiar with the government’s crackdown on illegal immigrants involving Chipotle and Pei Wei in 2011. Chipotle fired 450 employees in several Minnesota locations and also received Notices of Inspection for several other restaurants. Several other large restaurant chains including McDonald’s and Krispy Kreme have also come under scrutiny for employment of undocumented workers.
Smaller restaurant chains and independent restaurants are not immune to this issue, either. In January 2014, 32 operators of Chinese restaurants were charged with racketeering and immigration violations in Texas and Louisiana. In these cases, two employment referral businesses recruited illegal aliens, most out of Mexico and Central America, to work in the restaurants.
Why is employment eligibility verification so important?
An employer found guilty of hiring employees who are not authorized to work in the U.S. or of recruiting or referring such individuals for a fee may be subject to civil fines or criminal penalties. These penalties can be up to $3,200 per worker for a first offence up to a maximum of $16,000 per worker for a third offence. Engaging in a pattern of hiring illegal aliens can result in fines and imprisonment. A detailed list of penalties for civil and criminal violations is available here.
How serious is the U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI)? Very! The owner of Peppers 5 Mexican Restaurant in Jacksonville, FL was fined $10,000 for engaging in a pattern of hiring illegal aliens in January 2014. In September 2013, an Eastern Texas restaurant manager was indicted for harboring illegal aliens. If convicted, the manager faces a maximum penalty of 10 years in federal prison in addition to $250,000 for each count in the indictment.
The good news is that restaurant operators are not expected to be experts on the documents that establish work authorization. Following a few simple steps, however, can ensure compliance with immigration laws.
1. Conduct an internal I-9 audit: Having a consistently scheduled internal I-9 audit (at least once a year) can demonstrate a good faith effort on the part of the hospitality employer to avoid employment of unauthorized workers. It can also help head off any issues related to typos and spelling errors, missing or outdated information and expiration of List A, B, or C documents (see the I-9 Handbook for Employers).
2. Participate in E-Verify: As a result of ICE’s investigation, Chipotle started to use the Department of Homeland Security’s E-Verify program. E-Verify compares information from the Form I-9 to data from the Department of Homeland Security and Social Security Administration. It is a voluntary, free, fast service. An E-Verify case must be created for each hire no later than the third business day that employee starts to work for pay. Photo matching services are also available if certain documents are presented by the employee. By participating in E-Verify, legally, it is presumed that the employer has complied with I-9 requirements.
3. Gain basic knowledge of common employment authorization documents, including the following:
• Permanent Resident Card: The permanent resident card, Form I-551, is given to an individual who is granted authorization to live and work in the U.S. permanently.
• J-1 Exchange Visitors: J-1 non-immigrants are sponsored via an exchange program designated by the Department of State to promote interchange of individuals, knowledge, and skills. J-1 exchange visitors employed by hospitality establishments may be students or trainees. A DS-2019 is the relevant form. Dependents of J-1 visa holders holding a J-2 classification can apply for work authorization by filing the Form I-765.
• F-1 (Academic) or M-1 (Vocational) Students: After one academic year, F-1 students may pursue off-campus employment related to their area of study through curricular practical training (CPT) or optional practical training (OPT). M-1 students may engage in practical training only after the completion of their studies. Any off-campus employment must be approved by the Designated School Official in the Form I-20. Dependents of F-1 and M-1 students are not eligible for employment.
• H-2B Temporary Non-Agricultural Workers: Employers petitioning to bring in workers under H-2B typically do so to fill seasonal or temporary employment needs. H-2B visa holders may be authorized to work for a pre-determined amount of time as stated in the temporary labor certification. The maximum period of stay under H-2B classification is 3 years. It is important to know that there is a cap on the total number of individuals who can receive H-2B classification during the year.
• Refugees and Asylum: Refugees may work immediately upon arrival to the U.S., initially with a Form I-94 containing a refugee admission stamp, and later with a Form I-766. Those seeking asylum may apply for employment authorization if 150 days have passed since filing the complete asylum application and no decision has been made on the application.