Compliance with the Immigration
Reform and Control Act Of 1986

By Donald W. Parker

Beginning with the enactment of the Immigration Reform and Control Act in 1986 (“IRCA”), United States employers for the first time became subject to a series of civil and in some cases criminal penalties for knowingly employing foreign nationals who are not authorized to work in the United States. IRCA mandates that when an employer hires any employee, it must complete a process in order to establish that the employee is authorized to be employed in the United States. Failure to complete this process in the proper manner or employing someone knowing that they do not have authorization to be employed in the United States will subject the employer to a variety of potential fines and penalties. This Outline gives a brief overview of the employment verification process and the penalties for failing to comply with that process.

1. What is Prohibited?
   
   Every employer (including of a single employee) is barred from (i) knowingly hiring an alien who is not authorized to be employed in the United States; (ii) continuing to employ an alien knowing that he has become unauthorized; and (iii) hiring any person without complying with the required record-keeping procedures.
2. Who is Affected?
   
   The employment verification rules apply to every employer in the United States no matter the number of its employees. Exempt from the rules are employees who were hired on or before November 6, 1986.
   
   
1. The employment verification rules do not apply to independent contractors - defined as individuals who carry on independent business, contract to do work according to their own means and methods and are subject to control only as to results.
   
3. What are the Employment Verification Procedures?
   
   Employment verification is done on Form I-9. Form I-9 contains a certification by the employer and by the employee – the employer affirms that it has inspected the required documents provided by the employee to establish her identity and authorization to be employed (see discussion below) and that they appear to be genuine on their face and the employee affirms that she is a United States citizen, permanent resident or is authorized to work in the United States. The employer must complete the Form I-9 within 3 days of the date on which an employee is hired and must retain the Form I-9 for the later of 3 years or one year after the termination of the employee’s employment.
4. What Documents Can the Employee Provide to Comply with the Employment Verification Procedures?
   
   The employee can provide either (1) a single document that establishes both his identity and his authorization to be employed, such as a U.S. Passport; or alternatively (2) two documents, one to establish his identity (such as a Drivers License) and the second to establish his authorization to be employed (such as a Social Security Card). Attached to this Outline is a sample Form I-9 on the last page of which is a list of the acceptable documents.
   
   
1. The employer’s obligation as set forth on the Form I-9 is to confirm that the documents provided (i) relate to the employee and (ii) appear to be genuine.  The employer is not required to become an expert on the genuineness of government documents but is expected to note obvious flaws (such as, for instance, a Social Security Card with fewer than a 9 digit Social Security Number).
   
2. The employer may, but is not required to, make copies of the documents submitted and attach them to the Form I-9 for record-keeping purposes.
   
3. Where the employee’s employment authorization will expire by its own terms, the employer is obligated to up-date and reverify the employee’s employment authorization document on the Form I-9.  This reverification obligation also applies when an employee moves through several different immigration statuses (such as moving from F-1 student visa Optional Practical training to an H-1B visa status). Where employment authorization is limited as to time, the document provided by the employee, such as an Employment Authorization Card, will carry an expiration date, which must be noted on the Form I-9.
5. What are the Penalties for Failing to Comply with the IRCA Rules? 
   
   
1. The civil penalty imposed on the employer for failing to comply with the recordkeeping requirements can be $100 to $1,000 per paperwork violation.
   
2. The civil penalty imposed on the employer for knowingly hiring or continuing to employ an unauthorized foreign national can be $200 to $2,000 for a first offense and $200 to $5,000 for each offense thereafter.
   
3. If the employer engages in a pattern or practice of violating the employer sanction provisions, the employer can be subjected to a criminal penalty of up to $3,000 for each unauthorized employee and be imprisoned for up to six months.
   
4. In determining the extent of the penalty to assess, the Citizenship and Immigration Service will look at a number of factors, including: (i) the size of the employer’s business, (ii) the good faith of the employer (in for instance, attempting to keep accurate and up-to-date I-9 Forms), (iii) the seriousness and extent of the hiring or recordkeeping violation, (iv) the involvement of the unauthorized employee in the verification process, and (v) the employer’s history of previous violations.
   
5. It is important to remember that recordkeeping violations happen almost as a matter of course in any business. The best practice for most businesses is to self-audit their I-9 compliance on a regular basis both to catch problems and to establish good faith efforts to comply with IRCA should the employer ever be audited.
6. What are the Unfair Immigration-Related Employment Provisions?
   
   Under IRCA, employers can be liable for discriminating against any individual (other than an unauthorized worker) on the basis of her national origin or for discriminating against a U.S. citizen or permanent resident on the basis of her citizenship status. These anti-discrimination provisions apply to any U.S. employer with more than three employees.
   
   
1. These provisions can be triggered in a number of ways that are not entirely obvious. For instance, having a policy of only hiring U.S. citizens is a violation of these provisions. In addition, as part of the I-9 verification process, requiring an employee to produce documents that are not on the approved list of acceptable documents or rejecting documents that on their face appear to be genuine, can constitute a violation of these provisions.
   
   
2. Accordingly, employers need to be careful in following precisely the I-9 recordkeeping requirements both to defend against a claim of unlawful employment and to defend against a claim of unfair hiring practices.

Please contact Donald W. Parker should you have any questions concerning immigration.

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