Law Summaries - Immigration Reform & Control Act
This federal statute defines, among other things, the procedures and restrictions which apply to the employment of aliens and others.
Production_and_Examination_of_Documents
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 (except one hired before November 7, 1986), even though he had been lawfully hired, when the employer knows, or should know, that he is or has become an unauthorized alien.
Production and Examination of Documents
Employers must require all persons (including citizens) who are hired on or after November 7, 1986, to produce either an original document that establishes both employment authorization and identity, or in lieu thereof an original document which establishes employment authorization plus one which establishes identity.
Any of the following documents are acceptable to establish both employment authorization and identity (List A):*
- U.S. passport (unexpired or expired)
- Unexpired Permanent Resident Card, also known as Alien Registration Receipt Card. (Form I-551). Each form must contain a photograph of the bearer, his date of birth, and alien registration number
- Unexpired Temporary Resident Card (Form I-688)
- Unexpired Employment Authorization Document (Form I-688B or I-766) which contains a photograph of the bearer
- Unexpired Employment Authorization Card (Form I-688A)
- Native American tribal documents
- Unexpired foreign passport which:
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Contains an unexpired stamp stating . Processed for I-551. Temporary Evidence of Lawful Admission for Permanent Residence. Employment Authorized. ,
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or
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Has attached thereto an Arrival-Departure Record (Form I-94) in the same name as on the individual. s passport, on which there is an employment authorization stamp, so long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the Form I-94.
Some of the foregoing may specify employment restrictions.
* The Employment Eligibility Verification Form (I-9) includes other documents: Certificate of U.S. Citizenship, Certificate of Naturalization, Unexpired Re-entry Permit, and Unexpired Refugee Travel Document. These documents are also acceptable.
The following documents are acceptable to establish identity only (List B):
- Identification card (including a driver. s license) issued by federal, State, outlying possession, or local government agency or entity which contains either a photograph or a description and address.*
- School identification card with a photograph
- Voter. s registration card
- U.S. military card or draft record
- Military dependent. s identification card
- U.S. Coast Guard Merchant Mariner Card
- Canadian driver. s license
* The New Jersey Division of Motor Vehicles will issue an identification card to any New Jersey resident who is 17 years of age or older and who does not have a driver. s license.
If an individual who is under the age of 18, or if an individual with a disability who is being placed into employment by a nonprofit organization, association or as part of a rehabilitation program, is unable to produce a document from list A or B, he can substitute one of the following as an identity document: a school record or report card; a clinic, doctor or hospital record; a daycare or nursery school record. If he is unable to produce one of these substitutes, production is waived if his parent or legal guardian certifies on the Verification Form (see below) that the individual is under age 18, or (in the case of an individual with a disability) his parent, guardian, or the representative of the placing agency or program certifies that the individual is a . special placement.. In no case is the applicant relieved from the obligation to produce a document which establishes employment authorization.
The term . individual with a disability. has the same meaning as in the Americans With Disabilities Act.
The following documents are acceptable to establish employment authorization only (List C):
- A Social Security card other than one which states that it is not valid for employment purposes.
- An original or certified copy of a certificate of birth issued by a State, county, municipal authority, or outlying possession of the U.S. and bearing an official seal.
- Certification of Birth Abroad issued by the U.S. Department of State (Form DS-1350 or
FS-545). - U.S. Citizen Identification Card (Form I-179 or I-197).
- Unexpired employment authorization document issued by INS (other than one on list A).
An employer may not specify which document or documents an individual must present . i.e., if an applicant presents one of the aforementioned documents, an employer may not require him to produce a different one in lieu of the one presented, nor to present an additional document from either list.
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 be 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.
If a document . reasonably appears on its face to be genuine. , the employer may accept it as such. The employer may copy any of these documents which are presented, and retain the copies if they are kept with the I-9 Form.
The individual must complete his part of the I-9 Form at the time he commences work, and produce the required documents within 3 business days. The employer must complete his part of the form within the same 3-day period. However, these time periods are extended if the individual has work authorization but is unable to produce a required document, but within the 3-day period presents a receipt for the application for a replacement for the missing document and presents the document itself within 90 calendar days of commencement of employment. This extension is not applicable to an alien who indicates that he does not have work authorization at the time of hire. Also, if a person is hired for a period of fewer than 3 business days, the I-9 Form must be completed by both employer and employee at the time of commencement of employment, and the employer may not accept such a receipt in lieu of the documents themselves.
An employer is relieved of the documentation and attestation requirements where an individual is hired upon a referral by the New Jersey Employment Service or other State employment service if the individual presents a certification from the agency that it complied with those requirements.
If an employee. s employment eligibility document expires, the employer must update the 1-9 Form to reflect that the individual is still authorized to work in the U.S.; otherwise he may not continue lawfully to be employed. In order to update the form the employee must present a document that either shows continuing employment eligibility or is a new grant of work authorization. This reverification must be completed no later than the date of expiration of the employment authorization document.
If an individual who had been terminated is rehired within 3 years of the date of an executed I-9 Form, the form need not be updated (except to record the date of rehire), if inspection of it shows that the individual is still eligible to work. If it discloses otherwise, the form must be updated after the individual produces proper work authorization.
If a person who had been terminated is rehired more than 3 years after having executed an
1-9 form, a new form will be required.
Employment will not be deemed terminated, and no reverification will be required, in any of the following cases:
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Temporary leave of absence on account of study, disability (personal or family), maternity or paternity, vacation, union business.
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Temporary layoff for lack of work.
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Discharge followed by reinstatement as a result of an order of an arbitrator, court or administrative agency, or as a result of settlement.
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The individual is engaged in seasonable employment.
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Transfer of employment to a . related, successor or reorganized employer,. which means (1) the same employer at another location, or (2) an employer who continues to employ some or all of another employer. s workforce where there is a corporate reorganization, merger or sale of assets, or where both employers belong to the same multi-employer association and the employee continues to work in the same bargaining unit.
In cases where it is claimed that an interruption of employment was temporary, the employer must be able to prove that the employee had a reasonable expectation of resuming employment. Factors relevant to a determination of this issue include the nature of the individual. s employment (seasonal, regular, sporadic, etc.), the employer. s past history of recalling absent employees, permanent replacement of the absent employee by another worker, seeking of another job by the absent employee, etc.
It is unlawful to discriminate (in hiring or discharging) against an individual other than an unauthorized alien:
1. Because of his national origin,* or
2. Because he is an alien, if he is an alien who has been lawfully admitted for temporary or permanent residence or who has been admitted as a refugee or asylee. However, this does not include an alien who fails to apply for naturalization within 6 months of the date he becomes eligible to apply, or who has made a timely application but has not become naturalized within 2 years after making application (with some exceptions).
*Because of the parallel prohibition against national origin discrimination in the Civil Rights Act, a charge of such discrimination is within the jurisdiction of EEOC where the employer has 15 or more employees, and is within the jurisdiction of the Department of Justice where the employer has from 4 to 14 employees.
Where two applicants are equally qualified, it is not unlawful to give preference in hiring to a citizen or national over an alien. According to the Department of Justice, this exception is limited to individual cases and does not allow the application of a blanket policy of giving preference to citizens as a class over equally qualified non-citizens.
Enforcement of the statute will be by the U.S. Attorney General.* Investigations of violations or claimed violations also may be made by Immigration officers and administrative law judges.
For hiring or continuing to employ an individual, knowing that he is an unauthorized alien (other than one hired before 11/7/86), the penalties effective 3/27/2008 are:
$375 to $3,200 per alien, for a first offense
$3,200 to $6,500 per alien, for a second offense,
$4,300 to $16,000 per alien, for subsequent offenses.
For . pattern or practice. violations the penalties can include imprisonment for up to 6 months.
For failure to follow the prescribed procedures regarding examination and retention of documents, and attestation, the penalty is $110 to $1,100 for each individual with respect to whom the failure occurred.
Whoever uses an identification document, knowing or having reason to know that it is false or that it was not lawfully issued for the use of the possessor, or whoever makes a false attestation, is subject to a fine and to imprisonment for up to 5 years.
*Because of the parallel prohibition against national origin discrimination in the Civil Rights Act, a charge of such discrimination is within the jurisdiction of EEOC where the employer has 15 or more employees, and is within the jurisdiction of the Department of Justice where the employer has from 4 to 14 employees.
For active employees the I-9's must be retained for the entire duration of employment. The I-9 Form and any documentation from a State agency must be retained by the employer for 3 years after the date of hire or 1 year after termination of employment, whichever is later.
To download the current Form I-9 from U.S. Citizenship and Immigration Services (USCIS) click here.
