Law Summaries - Immigration Reform & Control Act
Immigration Reform & Control Act
In 1986, Congress reformed U.S. immigration laws and enacted the Immigration Reform and Control Act of 1986 (IRCA). This Act provided that all employers verify the identity and employment eligibility of each person hired, complete and retain a Form I-9 for each employee, and refrain from discriminating against individuals on the basis of national origin or citizenship.
General Provisions
It is unlawful:
1. To hire any individual without complying with the requirements described below regarding verification of status and production and examination of documents, or to hire an alien when the employer knows, or should know, that he is an unauthorized alien.
An “unauthorized alien” is an alien who is neither lawfully admitted to the U.S. for permanent residence nor authorized by this Act or the Attorney General to be employed.”
2. To continue to employ an individual, even though he had been lawfully hired, when the employer knows, or should know, that he is or has become an unauthorized alien.
Completing the Form I-9
An employer must complete the Form I-9 every time they hire any person to perform labor or services in return for wages or other remuneration. This requirement applies to everyone except for the following:
1. Hired before November 7, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times;
2. Employed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis;
3. Independent contractors; or
4. Providing labor to you who are employed by a contractor providing contract services (e.g., employee leasing or temporary agencies).
5. An employer can only require an employee to provide a social security number if they participate in the USCIS E-Verify Program.
The employee should complete Section 1 of the Form I-9 at the time of the hire (when he or she begins to work) by filing in the correct information and signing and dating the form. The employer must ensure that the employee has fully completed Section 1 and within 3 business days of the hire must complete Section 2 of the Form I-9.
The employee must present to the employer an original document or documents that establish identity and employment eligibility within 3 business days of the date employment begins. Some documents establish both identity and employment eligibility (List A). Other documents establish identity only (List B) or employment authorization only (List C). All documents must be unexpired at the time they are accepted for Form I-9 verification purposes. The employee can choose which document(s) he or she wants to present from the Lists of Acceptable Documents on the back of the Form I-9. For further information regarding completing the Form I-9, see USCIS publication M-274 Handbook for Employers.
If a document “reasonably appears on its face to be genuine,” the employer may accept is as such. The employer may copy any of these documents which are presented, and retain the copies if they are kept with the Form I-9.
The employer representative must accept any document(s) from the Lists of Acceptable Document presented by the individual which reasonably appear on their face to be genuine and to relate to the person presenting them. You may not specify which document(s) an employee must present. The employer representative should fully complete Section 2 of the Form I-9 by recording the title of the document, the issuing authority, the document number, and expiration date (if any) of the document(s); fill in the date of hire and correct information in the certification block; and sign and date the Form I-9.
Minors (Individuals under Age 18)
If a minor – a person under the age of 18 – cannot present a List A document or an identity document from List B, the Form I-9 should be completed in the following way:
1. A parent or legal guardian must complete Section 1 and write “Individual under age 18” in the space for the employee’s signature;
2. The parent or legal guardian must complete the “Preparer/Translator Certification” block;
3. You should write “Individual under age 18” in Section 2, under List B; and
4. The minor must present a List C document showing his or her employment eligibility. You should record the required information in the appropriate space in Section 2.
Verification Procedure
The applicant must attest on an Employment Eligibility Verification Form (I-9), under penalty of perjury, that he is either a citizen or national of the U.S., an alien lawfully admitted for permanent residence, or an alien authorized to be employed in the U.S., and supply other information called for on the form. The employer is responsible for ensuring that this is done properly.
The employer must attest on the same form that he has examined the documents presented and that they appear to be genuine and to authorize the individual to accept employment. The identification number of each document and its expiration date shall be noted on the form.
Reverifying Employment Authorization for Current Employees
When an employee’s work authorization expires, you must reverify his or her employment eligibility not later than the date the employee’s work authorization expires. You may use Section 3 of the Form I-9, or, if Section 3 has already been used for a previous reverification or update, use a new Form I-9. If you use a new form, you should write the employee’s name in Section 1, complete Section 3, and attach the new form to the original. The employee must present a document that shows either an extension of the employee’s initial employment authorization or new work authorization. If the employee cannot provide you with proof of current work authorization (e.g. any document from List A or List C, including an unrestricted Social Security card), you cannot continue to employ that person.
NOTE: List B identity documents, such as a driver’s license, should not be reverified when they expire.
Record Retention
Employers must retain completed Forms I-9 for all employees for 3 years after the date they hire an employee or 1 year after the date employment is terminated, whichever is later. These forms can be retained in paper, microfilm, microfiche, or, more recently, electronically.
To store Forms I-9 electronically, you may use any electronic recordkeeping, attestation, and retention system that complies with DHS standards, which includes most off-the-shelf computer programs and commercial automated data processing systems. However, the system must not be subject to any agreement that would restrict access to and use of it by an agency of the United States.
Discrimination
The anti-discrimination provision of the Act, as amended, prohibits four types of unlawful conduct:
(1) citizenship or immigration status discrimination;
(2) national origin discrimination;
(3) unfair documentary practices during the Form I-9 process (document abuse); and
(4) retaliation.
In practice, employers should treat employees equally when recruiting and hiring, and when verifying employment eligibility and completing the Form I-9. Employers should not:
1. Set different employment eligibility verification standards or require that different documents be presented by employees because of their national origin and citizenship status. For example, employers cannot demand that non-U.S. citizens present DHS-issued documents.
2. Request to see employment eligibility verification documents before hire and completion of the Form I-9 because someone looks or sounds “foreign,” or because someone states that he or she is not a U.S. citizen.
3. Refuse to accept a document, or refuse to hire an individual, because a document has a future expiration date.
4. Request that, during reverification, an employee present a new unexpired employment authorization document (EAD) if he or she presented an EAD during initial verification. For reverification, each employee must be free to choose to present any document either from List A or from List C.
5. Limit jobs to U.S. citizens unless U.S. citizenship is required for the specific position by law; regulation; executive order; or federal, state, or local government contract.
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), part of the United States Department of Justice Civil Rights Division, enforces the anti-discrimination provision of the INA.
Title VII also prohibits employment discrimination on the basis of national origin, as well as race, color, religion, and sex. Title VII covers employers that employ 15 or more employees for 20 or more weeks in the preceding or current calendar year, and prohibits discrimination in any aspect of employment, including. (See page 21 for Title VII).
Enforcement and Penalties
The Department of Homeland Security (DHS) may impose penalties if an investigation reveals that an employer has knowingly hired or knowingly continued to employ an unauthorized alien, or has failed to comply with the employment eligibility verification requirements, with respect to employees hired after November 6, 1986.
The following penalties may be imposed:
Employing Unauthorized Aliens:
1st offense: $375 to $3,200 per alien
2nd offense: $3,200 to $6,500 per alien
Additional offenses: $4,300 to $16,000 per alien
Improperly Completed, Retained or Missing Forms I-9:
$110 to $1,100 per employee
Requesting Specific Documentation:
$100 to $1,000 per individual
Knowingly Hiring or Continuing to Employ Unauthorized Aliens:
Up to $3,000 per unauthorized alien
Imprisonment (if convicted)
Participating in Document Fraud:
1st offense: $275 to $2,200
Additional offenses: $2,200 to $5,500
Discrimination:
1st offense: $375 to $3,200 per individual
2nd offense: $3,200 to $6,500 per individual
Additional offenses: $4,300 to $16,000
In determining the amount of the penalty, DHS will consider:
1. The size of the business of the employer being charged;
2. The good faith of the employer;
3. The seriousness of the violation;
4. Whether or not the individual was an unauthorized alien; and
5. The history of previous violations of the employer.
E-Verify
E-Verify is an Internet based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees. Participation in E-Verify is voluntary and does not exempt the employer from the responsibility to complete, retain, and make available for inspection Forms I-9 that relate to its employees, or from other requirements of applicable regulations or laws.
