The Immigration Reform and Control Act of 1986 (IRCA) made the knowing employment of unauthorized noncitizens unlawful and imposed civil fines for such employment. Since November 1986, every new hire must complete Section 1 of the I-9 form attesting to the individual’s identity and employment eligibility on the first day of employment. Within the first three days of hire, employers must complete Section 2 of the I-9 by examining original documents of identity and employment authorization, recording the starting date of employment, noting the document number(s) on the form, and certifying by signature under penalty of perjury that the documents examined appear to be genuine and relate to the employee.
The federal government has recently used the avenue of criminal law enforcement to prosecute employer violations of immigration laws, requiring that businesses refrain from hiring or continuing to employ workers whom the employer knows or should know lack the right to work in the United States. For this reason, employers should put procedures and systems in place to make sure that their compliance obligations under the immigration laws are fulfilled.
The Handbook for Employers, providing guidance for completing the I-9, Employment Verification Form, is available on the USCIS website.
To allay concerns that the employer sanctions of the Immigration and Control Act of 1986 would result in employment discrimination against minority groups, a separate section of IRCA made discrimination in job placement, hiring, or firing an unfair immigration-related practice, and provided civil penalties for such discrimination. Thus, if an employer requests that a worker provide more or different documentation than is required to establish employment authorization and identity under IRCA, or refuses to honor documents presented that on their face appear to be genuine, such actions will be considered to be unfair immigration-related employment practices related to hiring.
To ensure compliance with Form I-9 requirements, employers may wish to take advantage of E-Verify, an Internet-based system that allows businesses to determine the employment eligibility of its employees in the United States. With an employee’s social security number and any List B documentation, an employer may use E-Verify to ensure that documents provided for the I-9 are genuine and valid. Employers who wish to enroll in E-Verify should visit the USCIS website.
Government audit of an employer’s I-9 forms may be conducted by either U.S. Immigration and Customs Enforcement or the U.S. Department of Labor. Upon receipt of an audit notice, company representatives should contact immigration counsel immediately. An employer must be given three days’ notice before an audit may take place, although additional time may often be negotiated. The government is entitled to inspect the I-9 forms and to request a list of current and terminated employees. The parameters of the audit do not allow the government to review personnel forms, speak with employees, or enter the company’s non-public areas.
As a preemptive measure, we can conduct mock audits either in person at the employer’s offices or at our offices based on photocopies of the I-9 forms. Reviewing the I-9 forms provides an employer the opportunity to correct existing technical violations, train company representatives responsible for I-9 completion and tracking, and help develop compliance procedures. Once the mock audit is completed and problem areas are identified, we are able to assist the employer to develop a training program to address proper completion of the I-9 form as well as form maintenance and related issues.