It is unlawful for employers to hire, recruit or refer for a fee, or continue to employ illegal immigrants under the terms of the Immigration Reform and Control Act of 1986 (IRCA), and as subsequently amended.¹ In addition to the above, the IRCA also requires employers to follow an employment eligibility verification procedure for every newly hired employee.

Employment Eligibility Verification. Employers must verify on a form provided by the U.S. Citizenship and Immigration Services (USCIS) that the individual hired is not an unauthorized alien. The IRCA specifically outlines the types of documents employers may accept as evidence of employment eligibility.² These verification requirements are outlined in the employment eligibility verification form I-9. You can download a copy of the I-9 form from the U.S. Citizenship and Immigration Services website.

The USCIS requires that the I-9 form be completed and that supporting documentation which establishes identity and eligibility for employment be obtained within three days of the employee commencing employment. If an employee is hired for fewer than three days, the I-9 form must be completed at the time of hire.

Retention of form I-9. Verification forms must be retained by recruiters and referrers for a fee for a period of three years after the date of recruiting or referral. In the case of the hiring of an individual, the verification forms must be retained for three years after the date of hire, or one year beyond the date of termination of the employee, whichever is greater.³ The USCIS may inspect the verification forms. Inspection officials do not need warrants or subpoenas to gain access to the records. However, they must give an employer three days advance notice. All aspects of the I-9 forms must be completed as required by the USCIS regulations. Sanctions may be imposed if any portion of the I-9 forms are not completed properly.

Sanctions. Employers that knowingly hire illegal aliens or that fail to take the required steps to verify the employment eligibility of new hires are subject to civil and criminal penalties under the employer sanctions provision of the law. Employers are subject to fines ranging from one hundred dollars to one thousand dollars for each individual with respect to whom such violation occurred.⁴ In addition, for each illegal alien hired, employers may be fined from two hundred fifty dollars to two thousand dollars for the first offense, two thousand dollars to five thousand dollars for a second offense, and three thousand dollars to ten thousand dollars for subsequent offenses.⁵ If an employer engages in a pattern or practice of violations of hiring illegal aliens, that employer could be fined up to three thousand dollars for each unauthorized alien and imprisonment of up to six months, or both.⁶

Discrimination Prohibitions. The IRCA also prohibits discrimination based on national origin or citizenship status.⁷ The penalties for discrimination under the IRCA include payment of back wages for up to two years plus penalties as defined by the Act. In addition, attorney fees may be awarded to the prevailing party, if the losing party's argument is without reasonable foundation in law and fact.⁸

Recommendations For Compliance

1. Copy and retain all I-9 forms and supporting documentation.
   
   
2. Do not make employment decisions based on an individual's accent, foreign appearance, or name.
   
   
3. Do not ask individuals about their citizenship or where they were born.
   
   
4. Examine the I-9 form carefully and make sure that all parts of the form are completed.
   
   
5. Do not use verification documents that do not appear to be valid. The INS will assist you in determining what types of documents are valid.
   
   
6. Keep all verification documents and I-9 forms for the required period of time.
   
   
7. More information about the employment verification process and other employer-based immigration topics is available from the USCIS's I-9 Central by clicking here.
   
   

 

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SOURCES

1. Immigration Reform and Control Act of 1986, 8 U.S.C. § 1324a.
   
   
2. 8 U.S.C. § 1324a(b).
   
   
3. 8 U.S.C. § 1324a(b)(3).
   
   
4. 8 U.S.C. § 1324a(e)(5).
   
   
5. 8 U.S.C. § 1324a(e)(4).
   
   
6. 8 U.S.C. § 1324a(f).
   
   
7. 8 U.S.C. § 1324b.
   
   
8. 8 U.S.C. § 1324b(g) and (h).