Written by attorney James D. Dipasquale

Employing Illegal Aliens (NYC Restaurant Owners Guide)

In his September 9, 2010 appearance on Fox News, New York City Mayor Michael Bloomberg stated: "Although [illegal immigrants] broke the law by illegally crossing our borders or over-staying their visas and our businesses broke the law by employing them, our city's economy would be a shell of itself had they not, and it would collapse if they were deported." Bloomberg's statement appears to be supported by the numbers. The Fiscal Policy Institute, in conjunction with the New York Immigration Coalition conducted a study that was released in November 2007 examining the impact of illegal aliens on New York's workforce. What did they find?

o There are roughly 535,000 illegal immigrants in New York City. o Of the 535,000 approximately 374,000 are active participants in New York City's workforce. o The restaurant industry hires approximately 36% of all illegal immigrants. o In New York City, there are 11,000 illegal aliens employed as dishwashers (or 54% of all NYC dishwashers); 21,000 employed as cooks (33% of all NYC cooks); 15,000 employed as waiters/waitresses (28%); and 6,000 employed in food preparation (37%).

The primary appeal to hiring an illegal immigrant is that they often work for less compared to those legally permitted to work in the United States. Illegal aliens rarely complain about working long hours or in harsh conditions for little pay. As reported by Sarah Kershaw of the New York Times in her September 7, 2010 article entitled 'Immigration Crackdown Steps Into the Kitchen' a Tribeca restaurateur explained, "We always, always hire the undocumented workers...It's not just me, it's everybody in the industry. First, they are willing to do the work. Second, they are willing to learn. Third, they are not paid as well. It's an economic decision. It's less expensive to hire an undocumented person"

The economic reality is that many restaurant owners overwhelming rely on illegal alien employment, but that can come with stiff penalties. Immigration and Customs Enforcement is keenly aware of this and consequently focus more on restaurant owners who employ illegal immigrants, than the workers themselves.

The web of complex immigration and labor laws makes it difficult for any employer to understand when they can employee an immigrant. To take a common example, if at the time of hire, an immigrant employee provides you with a work authorization from the Immigration Service, the employer must still attempt to verify the accuracy of the document and further verify on an annual basis that the authorization remains in effect.

Section 274A of the Immigration and Nationality Act and 8 U.S.C 1324(a), make it a crime for an employer to knowingly hire an undocumented worker. The violation of either law can result in both civil and criminal penalties including:

o Fine of $250 to $2,000 for each undocumented worker; o Fine of $2,000 to $5,000 for each undocumented worker if the owner was previously fined; o $3,000 to $10,000 for each undocumented worker if the owner was directed to cease and desist his/her hiring practices more than once; o Fine of $100 to $1,000 for each failure to maintain the required "paperwork" for your undocumented workers; o Possible imprisonment for up to six months;

On a side note, in March of 2011 State Senator Bill Perkins introduced a bill to the New York State's Legislature that would, if approved, make it easier for certain young illegal immigrants to obtain driver's licenses and hold certain jobs in the State. For an immigrant to qualify under the bill they would have to "have arrived to the United States before the age of 16, be under the age of 35, have resided in New York State for at least two years, have obtained a high school diploma or GED equivalent from an American institution and have good moral character."

Despite the fact that it is a crime to employ illegal immigrants, New York City adheres to a sanctuary policy instituted by Mayor Bloomberg that prohibits police officers from asking employees about their immigration status. Notably, this policy does not apply to federal investigators.

Additional resources provided by the author,_Restaurants,_Taverns,___Nightclubs_cp3461.htm

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