Fire undocumented worker & use as contractor

I recently had a consultation with an employer who had several employees working for him but the employer had not completed I-9 forms for any of them.  I informed the employer that all employers are required to fill out I-9 forms for their employees.  The employer was afraid that some of his employees may not be able to prove that they have legal status to work and live in the United States.  The employer asked me if he could fire the employees and then bring them back on board as contract workers and thereby avoid having to fill out I-9 forms for the employees.  My answer…No, you may not do that.

When an employer asks an employee to provide documentation for I-9 compliance purposes and the employee cannot provide proper documents, the employer has constructive knowledge that the employee is not authorized to work legally in the United States.  Once the employer has constructive knowledge that he employee is not authorized to work legally in the United States the employer cannot then use the employee’s services on a contract basis.  The fines for hiring unauthorized workers in this situation can range anywhere from $375 to $3,200 per worker for a first-time offense.

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