IRCA - Immigration Reform and Control Act
Coverage
- All public-sector and private-sector employers, regardless of size or number of employees, must verify the citizenship or employment status of new hires.
- Employers with three or fewer employees are exempt from IRCA's anti-discrimination provisions.
- Employers with more than three but fewer than 15 employees may not discriminate according to citizenship status or national origin.
- Employers with 15 or more employees are prohibited from engaging in national origin discrimination under Title VII and bias based on citizenship status under IRCA.
- Almost all full-time, part-time, and temporary workers must be verified.
- Protected individuals include U.S. citizens or nationals, permanent resident aliens, persons granted the status of aliens lawfully admitted for temporary residence, aliens admitted as refugees, and aliens granted asylum.
- Individuals not protected include aliens who fail to apply for naturalization within six months of the date they first become eligible to apply for naturalization and those aliens who have made a timely application but have not been naturalized within two years after the date of application.
Verification Requirements
When an applicant is hired, the employer must sign a Form I-9 attesting that it has examined appropriate documents, provided by the applicant, which verify the applicant's identity and authorization to work in the United States. The applicant must also attest on the form that he/she qualifies for employment. Section 1 — Employee Information and Verification must be completed by employees on their first day of work. Employers must complete Section 2 — Employer Review and Verification within three business days of the date employment begins. Although verification must be done within three days of hire, it could be extended to 90 days if the employee presents a receipt proving that an application for replacement of the authorization document has been filed. If employees are hired for fewer than three days, Sections 1 and 2 of the I-9 form must be completed at the time of hire.
Verification is determined by reviewing one document from List "A" or one original document from each of Lists "B" and "C."
Note: Under regulations issued by the USCIS in December 2008, the I-9 form was modified. The list of acceptable documents from List "A" was revised. In addition, you are no longer permitted to accept any expired documents for proof of identification or work authorization. Finally, you must use the new I-9 form for any reverifications of existing employees.
List "A" documents show identity and authorization to work.
- U.S. Passport or U.S. Passport Card
- Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
- Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa
- Employment Authorization Document that contains a photograph (Form I-766)
- In the case of a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport with Form I-94 or Form I-94A bearing the same name as the passport and containing an endorsement of the alien's nonimmigrant status, as long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restriction or limitations identified on the form
- Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI
List "B" documents establish identity.
- Driver's license or ID card issued by a State or outlying possession of the United States, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address
- ID card issued by federal, state, or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address
- School ID card with a photograph
- Voter's registration card
- U.S. Military card or draft record
- Military dependent's ID card
- U.S. Coast Guard Merchant Mariner Card
- Native American tribal document
- Driver's license issued by a Canadian government authority
The following documents may be used by persons under age 18 who are unable to present a document listed above.
- School record or report card
- Clinic, doctor, or hospital record
- Day-care or nursery school record
List "C" documents establish employment eligibility.
- Social Security Account Number card other than one that specifices on the face that the issuance of the card does not authorize employment in the United States
- Certification of Birth Abroad issued by the Department of State (Form FS-545)
- Certification of Report of Birth issued by the Department of State (Form DS-1350)
- Original or certified copy of birth certificate issued by a State, county, municipal authority, or territory of the United States bearing an official seal
- Native American tribal document
- U.S. Citizen ID card (Form I-197)
- Identification card for use of Resident Citizen in the United States (Form I-179)
- Employment authorization document issued by the Department of Homeland Security
Verification Exemptions
Employers do not need to complete a Form I-9 for persons who are:
- hired before November 7, 1986, who are continuing in their employment, and have a reasonable expectation of employment at all times;
- employed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis;
- independent contractors; or
- providing labor to you who are employed by a contractor providing contract services (e.g., employee leasing or temporary agencies).
Reverification Requirements
When a current employee's work authorization expires, you must reverify his/her employment eligibility. 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. 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), 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.)
You must reverify an employee's employment eligibility no later than the date the employee's work authorization expires.
When you rehire a former employee, you must ensure that he/she is still authorized to work. You may do this by completing a new Form I-9 or you may reverify or update the original form by completing Section 3.
If you rehire an employee within three years of the initial date of hire, and the employee is still eligible to work on the same basis as when the original Form I-9 was completed, you may update on the employee's original Form I-9 or on a new Form I-9.
To update, you must:
- Record the date of rehire;
- Sign and date Section 3; and
- If you are updating on a new Form I-9, write the employee's name in Section 1.
If you rehire the employee within three years of the initial date of hire, and the employee's previous grant of work authorization has expired, but he/she is currently eligible to work on a different basis or under a new grant of work authorization than when the original Form I-9 was completed, you may reverify on the employee's original Form I-9 (or on a new Form I-9 if Section 3 of the original has already been used).
To reverify, you must:
- Record the date of rehire;
- Record the document title, number, and expiration date (if any) of any document(s) presented;
- Sign and date Section 3; and
- If you are reverifying on a new Form I-9, write the employee's name in Section 1.
Employers always have the option of completing Sections 1 and 2 of a new Form I-9 instead of completing Section 3 when rehiring employees.
Warning: If you used a version of the Form I-9 dated before February 2, 2009, when you initially verified the employee, you must complete a new Form I-9 upon rehire.
Non-Discrimination Provisions
IRCA prohibits employment discrimination based on national origin and citizenship status. An employer cannot request more or different documents than required to verify status, nor can it refuse to accept documents that "reasonably appear to be genuine." Other signs of discrimination include: asking employees with a foreign accent to prove U.S. citizenship but sometimes waiving this procedure for white employees; and photocopying documents from some applicants and not from others. It is also discriminatory to threaten, intimidate, or retaliate against a person who has filed or plans to file a discrimination charge.
Record-Keeping Requirements
I-9 forms must be kept for three years from the date of hire or one year from the date of termination, whichever is longer. If the employee has been with the company for more than three years, you must retain the I-9 form for one year after termination. If the employee has been with your company for less than three years, determine which date is later — three years after the date of hire or one year after the employee left.
When a person who was previously employed is rehired and the original Form I-9 was updated, it must be kept for three years from the initial date it was completed or one year after the employee is terminated, whichever is later. If a new I-9 form is completed, retain the document according to the new date listed in the Certification section of Section 2.
Employers who use a state employment agency must retain the agency's statement that certifies the applicant's eligibility for the same time periods as above.
Completed I-9 forms should be kept in a locked cabinet separate from all other documents. Only those with a "need to know" should have access to these files.
Penalties
Effective March 27, 2008, employers that violate immigration law face larger civil monetary penalties, which were raised by the Department of Homeland Security and the Department of Justice to account for inflation.
Penalties for failing to comply with the employment eligibility verification process (Form I-9) or for knowingly employing or continuing to employ unauthorized aliens have increased as follows.
- First offense: not less than $375 and not more than $3,200 for each unauthorized alien with respect to whom there was a violation (was $275 and $2,200).
- Second offense: not less than $3,200 and not more than $6,500 for each unauthorized alien with respect to whom a second violation occurred (was $2,200 and $5,500).
- Subsequent offenses: not less than $4,300 and not more than $16,000 for each unauthorized alien with respect to whom a third or subsequent offense occurred (was $3,300 and $11,000).
Penalties for document fraud (e.g., forging or altering documents for I-9 purposes) have increased as follows.
- First offense: not less than $375 and not more than $3,200 for each document that is the subject of a violation (was $275 and $2,200).
- Subsequent offenses: not less than $3,200 and not more than $6,500 for each document that is the subject of a violation (was $2,200 and $5,500).
Penalties for document fraud related to preparing, filing, or assisting others in preparing or filing falsely made or fraudulent documents have increased as follows.
- First offense: not less than $275 and not more than $2,200 for each document that is the subject of a violation (was $250 and $2,000).
- Subsequent offenses: not less than $2,200 and not more than $5,500 for each document that is the subject of a violation (was $2,000 and $5,000).
Penalties for unfair immigration-related practices (e.g., discriminating against applicants or employees based on nationality or citizenship status; refusing to accept permissible documents presented by an employee in compliance with Form I-9 requirements) have increased as follows.
- First offense: not less than $375 and not more than $3,200 for each individual discriminated against (was $275 and $2,200).
- Second offense: not less than $3,200 and not more than $6,500 for each individual discriminated against (was $2,200 and $5,500).
- Subsequent offenses: not less than $4,300 and not more than $16,000 for each individual discriminated against (was $3,300 and $11,000).
Penalties for participants in the government's electronic employment eligibility program who fail to notify the DHS of the inability to confirm an employee's employment eligibility are:
- not less than $550 and not more than $1,100 (was $500 and $1,000).
The E-Verify Program
The E-Verify program, formerly known as the Basic Pilot, is an Internet-based system operated by the Department of Homeland Security in partnership with the Social Security Administration (SSA). The E-Verify program allows participating employers to electronically verify the employment eligibility of new hires. To participate, employers register online and accept the electronic Memorandum of Understanding (MOU) that sets forth the responsibilities of the SSA, USCIS, and employers. Surf to https://e-verify.uscis.gov/enroll/StartPage.aspx?JS=YES for more information on the registration process.
The E-Verify program is free and voluntary, unless employers are federal contractors. As a condition of receiving future work from the federal government, many federal contractors must agree to use the E-Verify program to ensure that all employees hired during the contract term, and all employees performing work in the U.S. on a federal contract, are eligible to work in the U.S.
In addition, many states are setting similar mandates for employers that seek state contracts. While states can't enforce the federal immigration laws, they can set licensing and other local standards. More and more states are enacting laws that require all employers to use the E-Verify program or another system to affirm employees' work eligibility. Employers that fail to use the E-Verify program risk losing their licenses to operate in the state.
