Most employers are first acquainted with the Immigration Reform and Control Act (“IRCA”) through meeting their obligations to complete the I-9 form for each employee hired. The I-9 form must be completed no later than three days of employment (or on the first day of employment if less than three days). The failure to do this is a violation of IRCA.
The I-9 form verifies both the identity of the employee and his or her authorization to work. Because employees must produce original documents providing this information, many employers inform employees of the documents that are required at the time the offer of employment is made. There are three parts to the I-9. The first part is completed by the employee. If there are any inconsistencies in the information written in Part I of the form or inconsistencies with the documents presented by the employee, the form should not be accepted by the employer.
The employer must review the documents presented by the employee (note that the employee has the right to submit documents of his or her choosing provided they are among those listed on the I-9) for verification by the employer. “A” documents establish both identity and authorization to work and therefore one document can serve both purposes. There can be no substitutions for these documents for Congress has mandated the list. An expired passport is an acceptable “A” document. Employers can not require an employee to submit a Social Security card, but one may be submitted if the employee so chooses. “B” documents establish identity and “C” documents establish authorization to work.
Certain “receipts” are acceptable “C” documents: the receipt for the application of a replacement document; the arrival portion of an I-94 form with an attached photo and a temporary I-551 stamp; and the departure portion of the I-94 form with a refuge admission stamp. The original documents must be returned to the employee; the employer may keep a copy. The I-9 must be retained for three years or one year after employment ends whichever is longer.
Under IRCA all employers, no matter what their size, are prohibited from (1) knowingly hiring, recruiting, referring for employment, or continuing to employ persons who are not authorized to work in the U.S.; (2) continuing to employ a foreign national with the knowledge that he/she has become ineligible to work in the U.S.; and (3) hiring any individual, whether a U.S. citizen or foreign national, without following IRCA’s recordkeeping requirements. Steep fines are imposed upon employers who violate IRCA’s prohibitions.
There are several ways that an employer can discriminate under ICRA (and under EEO laws). One form of discrimination is to only hire persons who are citizens of the U.S.. An individual does not have to be a citizen in order to legally work in the United States. An employer should not even ask if an applicant is a citizen. Discrimination on the basis of national origin (e.g. place of birth, ancestry, native language, accent, or looking or sounding foreign) will be found when an employer treats employees differently based on their national origin.
Discriminatory document practices can also lead to a violation of the IRCA. This may occur in one of four ways: (1) requesting that employees produce more documents than are required for the I-9 verification process; (2) requesting that an employee produce a particular type of document (e.g. a “green card”); (3) rejecting documents that reasonably appear to be authentic and appear to belong to the employee presenting them; and (4) treating different groups of employees differently such as requiring those with a foreign “look” to produce more documents than those who do not look foreign. The IRCA also protects an employee from retaliation by the employer. Employers must be careful and not take any adverse action because someone asserts rights under IRCA.
The use of independent contractors may also be a source of trouble for an employer under IRCA. The IRCA does not require an employer to complete an I-9 for its contractors (for they are not “employees”). However, there are two ways that the employer can be found violating the IRCA through the use of independent contractors. First, if the relationship is not that of an independent contractor, the failure of the employer to complete I-9 forms for individuals who provide services under a contract is a violation of the IRCA. Second, if an employer has knowledge that its independent contractor is using illegal workers, the employer could be found in violation of the IRCA.
A few years ago, Wal-Mart settled a suit brought by the Department of Homeland Security for $11 million dollars. It was alleged that Wal-Mart had constructive knowledge that its janitorial service contractors were employing illegal workers (245 illegal night workers were working in 60 stores). The lesson to be learned from this case is to require independent contractors to provide copies of the I-9 forms and verifying documents for all individuals performing work under the contract.
There are many types of visas issued by the State Department and many of these do not allow the individual to work in the U.S. (e.g. a visitor visa) or only allow certain types of work. Also, many work permits have expiration dates and employment can not continue beyond that date unless the permit is renewed.