Employers Need Amnesty Before Helping Illegal Alien Employees Gain Legal Status

By Ronald W. Mortensen on January 21, 2015

President Obama's executive amnesty for illegal aliens has put employers in a bind since, unlike the Senate-passed comprehensive immigration bill, it does not explicitly grant employers of illegal aliens amnesty. Employers are, therefore, being advised to exercise extreme caution in helping their illegal alien employees apply for legal status until the Department of Homeland Security (DHS) uses its guidance and rule-making processes to grant them amnesty from knowingly hiring illegal aliens. Thus, in addition to ongoing legislative and judicial initiatives to stop the executive amnesty, efforts should be made to prevent DHS from extending the amnesty to employers of illegal aliens.

Employers Dirty Little Secret Revealed. The president's executive amnesty has inadvertently brought employers' dirty little secret out into the open: They know full-well that they are unlawfully hiring illegal aliens who are committing multiple felonies (document fraud, forgery, child identity theft, Social Security fraud, perjury) and they fear being exposed by the executive amnesty program.

Employers currently play a "don't ask, don't tell" game by accepting phony documents and Social Security numbers given them by illegal aliens, by turning their backs on massive employment-related child identity theft, by condoning perjury, and by cynically collecting falsified I-9 forms. These same employers refuse to use E-Verify or the Social Security Number Verification Service to ensure that they have a legal workforce.

Thus, much to the chagrin of the employers of illegal aliens, the Obama executive amnesty threatens to expose them as criminals who systematically violate the law and harm others for their own selfish economic gains. It also inadvertently highlights the felonies committed by their illegal alien employees in order to get jobs.

Employers Advised to Avoid Helping Illegal Aliens Get Amnesty. Employers of illegal aliens now find themselves in the position of having to openly advocate for amnesty for crimes associated with the employment of illegal aliens before they can help their illegal alien employees gain legal status under the Obama amnesty. The situation is so serious that the employers of illegal aliens are being advised to steer clear of helping their illegal alien employees obtain the documents required for legal status.

The Agriculture Coalition for Immigration Reform (ACIR) and two attorneys published an article that advises employers to refrain from proactively helping their illegal alien workers apply for legal status and to be extremely cautious in providing employment documents until the Obama administration finds a way to grant employers amnesty.

"Our initial advice to employers: restrain yourselves until the government provides guidance for employers with regard to its view of how these actions interface with the work authorization requirements of existing law," write Lynn Jacques, Esq. and Monte B. Lake, Esq., of SJ-Lake LLC, and ACIR Co-Chairman Craig Regelburgge. In other words, employers should not do anything until they are granted amnesty for their crimes.

ACIR and the attorneys provided the following advice to employers of illegal aliens (quotations are in italics):

  • Never, ever acknowledge that you are hiring illegal aliens. Rather, use the Casablanca defense when you can no longer deny that you have illegal aliens working for you: "I'm shocked, shocked to find that illegal aliens are working here":

    DO NOT ASK and do not reach out to your current workforce regarding their potential eligibility for deferred action status. You do not want to know that a current worker is unauthorized to work in the U.S., or the legal consequences of "actual knowledge" of hiring an unauthorized worker may befall you.

  • Continue to use the "don't ask, don't tell" strategy and play dumb if your illegal alien employees ask you for employment records in order to avoid self-incrimination:

    If an employee asks for copies of employment records, DO NOT ASSUME why they are asking, and do not seek clarification, or the peril of constructive knowledge of continuing to employ an unauthorized worker may befall you. Employment records are needed and may be requested for a variety of reasons — loans, school residency, leases, etc., not just to qualify for the deferred action under discussion. Bottom line — if asked for such records, "don't ask, don't tell" with respect to the underlying reason for the request.

  • Don't panic and throw away fraudulently completed I-9 forms that you accepted and signed when an illegal alien comes in with a new set of documents. Play dumb since you don't want to acknowledge that you and your employees are knowingly committing job-related felonies. However, do everything necessary to cover your tail:

    Update the I-9. DO NOT THROW AWAY THE ORIGINAL I-9, or the peril of a non-compliant paperwork audit will befall you. Complete a new I-9 with the newly provided information and attach it to the old one. Ensure that your information on the worker for various reporting requirements, particularly tax reporting, is updated. Document the reason for the completion of the new I-9 Form and updated tax and Social Security information is because the employee informed you that he/she has obtained work authorization under the new Executive Order.

  • Stall. Don't allow an I-9 audit to go ahead since that could show that you are hiring illegal aliens using forged documents and committing perjury, Social Security fraud, and identity theft — all felonies. Rather rope-a-dope it out until you no longer risk being held accountable for your own hiring crimes:

    Perhaps you have been the subject of an I-9 audit and have been issued a notice of suspect documents related to some of your employees who have informed you that they have an application pending for deferred action, or they may qualify for deferred action when the application period opens, or they have been granted deferred action along with work authorization. DO NOT TERMINATE because of past unauthorized status or the peril of a discrimination lawsuit by aggressive worker advocate lawyers may befall you. Request an extension of time before making a determination decision to well after the beginning of the Deferred Action application process in writing to DHS, and cite the Action as justification.

Disrupt the President's Executive Amnesty by Refusing Amnesty for Employers. The above guidance reveals the difficulty that employers find themselves in because of their illegal activities. It also exposes the weak link in the Obama amnesty plan — employers. Therefore, even as legal and legislative challenges to the president's executive amnesty go forward, efforts should be made to prevent DHS from granting amnesty to employers who have violated U.S. laws by hiring illegal aliens, who have accepted fraudulent documents and stolen identities, who have violated labor and wage laws, and who have failed to comply with payroll and other tax laws. As long as employers feel threatened by the executive amnesty, they will not be willing to expose themselves to criminal prosecution in return for helping illegal aliens gain legal status.