The United States Department of Homeland Security's Immigration and Customs Enforcement Agency is expected to publish regulations soon that impose new penalties on American employers of foreign nationals unauthorized to work in the US.

US law already provides penalties for American employers who employ foreign nationals that the employer knows is not authorized for such employment. The law requires the government to prove the employer had either actual or constructive knowledge that the employee was not authorized to work in the US.

In the current regulations, constructive knowledge is defined to include situations where the employer fails to properly complete the Form I-9 that US employers are required to complete for all employees, has information that would indicate that the employee is not eligible for employment, or otherwise acts with reckless and wanton disregard for legal consequences of such employment.

Although the new regulation is not yet published, it is already being reported that the new rule will consider employers to have knowledge in situations where the US Social Security Administration reports that the social security number used by the employee is false. Employers would have to terminate employees who fail to correct their social security number or face penalties.

See U.S. Set for a Crackdown on Illegal Hiring, New York Times, August 8, 2007, for more information.