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Under the Immigration Reform and Control Act of 1986 (“IRCA”), employers may only hire people who are authorized to work in the United States. To this end, employers have the burden of verifying that their prospective employees are authorized to work before they commence employment. However, as an individual’s work authorization is inextricably linked with their immigration status, federal law also requires that the work verification process must not discriminate against workers on the basis of immigration status, nationality, accent, or appearance.

To comply with the law, employers must verify the identity and employment eligibility of employees by completing the I-9 Employment Eligibility Verification Form (“Form I-9”). The I-9 must be completed for all prospective employees, not just those that the employer believes to be unauthorized workers. In conjunction with the I-9 form, employers must collect certain documents for the purposes of verifying a prospective employee’s identification and work status. Employers must follow strict guidelines in requesting these forms of identification and may not reject reasonably genuine-looking documents. Violations of these requirements under IRCA can subject an employer to allegations of discrimination, months of federal investigations, loss of government contracts, large fines, and negative publicity.

Filling out the I-9 Form

Because of federal discrimination laws under IRCA, employers cannot just ask prospective employees to fill out a Form I-9. The form must be incorporated into a hiring process that ensures equal treatment of everyone.

Employers can only present the I-9 Form after an offer of employment and an acceptance from the employee have been made. Once the offer of employment is accepted, the employee must complete Section 1 of the I-9 Form on or before the first day of work. The employee is required to provide her full legal name, current address, and date of birth. The employee is only required to provide a social security number if the employer uses E-Verify (which is not mandatory but has benefits for employers). In addition, the employee must attest under the penalty of perjury her citizenship status or employment-authorized immigration status. If applicable, the employee must also provide her Alien or Admission Number along with the employment authorization expiration date. Finally, the employee must sign and date Section 1 certifying the information is true. Any translator or preparer who assisted must also provide their name, address, and signature. The employer must review the information to ensure completeness of all required fields.

Within three business days of the employee’s first day of work, the employer must complete Section 2, which requires the employee to present acceptable documents to verify the employee’s identity and eligibility for work. Acceptable documents are divided up into three categories: A, B, and C. List A consists of documents that verify both identity and work eligibility; List B contains documents that verify only identity; and List C contains documents that verify only employment authorization. The employee may either present one document from List A only, or a combination of one document from List B and one from List C. The employee has the right to choose which documents to present - the employer is strictly prohibited from specifying any particular documents it will accept. Once the employee presents the required document(s), the employer then determines whether the document(s) appear to be genuine and related to the individual. Thereafter, the employer can record the document information on the Form I-9.

The employer or an authorized representative must record the title, issuing authority, number and expiration date, if any, of the document, fill in the employment date, and sign and the Form I-9. Employers who complete the form early or improperly, ask the wrong questions, or who require or refuse to accept a particular document could be found liable for discrimination and be subjected to significant penalties.

Employers must complete an I-9 Form for all employees, and keep the original forms for three years after the date of hire or one year after the date the employment ends, whichever is later. Employers may choose to make copies of the employment eligibility verification documents, and if so, must make copies for all employees and retain those copies with the I-9 Forms.

I-9 re-verification requirements

• An employee who is not a U.S. citizen or a permanent resident is likely working based on a work authorization status with an expiration date. The employer must record the expiration date on the employee’s I-9 Form and in Section 3 of the form and re-verify the employee’s work authorization document before the expiration date. Employers should establish a reliable system for prompt re-verification; thereby reducing the risk employers could face of employing someone no longer eligible to work and to appropriately alert employees that they need a work visa extension to remain in legal status.
  

Some examples of discrimination

•  Employers are cautioned from engaging in the following practices:

•  Requesting to see employment eligibility verification documents before hiring an individual because that person has a foreign accent or someone said that person is from a different country.

Refusing to accept a particular employment eligibility verification document or refusing to hire someone, because that person presented a document with an expiration date.

•  Refusing to accept a particular employment eligibility verification document that is acceptable by law and that appears to be reasonably genuine.

•  Requesting to see a specific document for the completion of the Form I-9. Employers should only accept the documents that are required for verification (one from List A or one from List B and List C). For example, an employee who already presented a document from List B and List C does not need to also present one from List A. An employer who then asks for a document from List A is subject to an allegation of discrimination.

•  For recordkeeping purposes, making copies of employment eligibility verification documents only for non-U.S. citizens but not making copies for U.S. citizens. Employers are not required to make copies of the verification documents. If an employer chooses to make copies, copies should be made for all employees.

•  Setting different employment eligibility verification standards for different individuals or requiring that employees provide different documents, based upon national origin or citizenship status. All employees should be treated the same and should go through the same process.

•  Adopting a policy that the employer will only hire U.S. citizens. Note that some jobs do require U.S. citizenship by law, regulation, executive order, or federal, state, or local government contract.

•  Requesting during re-verification that an employee presents a new unexpired employment authorization document if one was already presented during the initial verification.

•  Engaging in threats, intimidation, retaliation, or discharge against an employee who exercises their rights under the anti-discrimination law.

Penalties for I-9 violations

Employers that hire unauthorized workers can be fined anywhere from $250 up to $5,500 per worker depending on their prior history of violation. Additionally, employers can be barred from competing for government contracts if they knowingly hire or continue to employ unauthorized workers. Mistakes or missing items on required forms can result in a $100 up to $1,000 fine per form. Moreover, employers who miss a form could be fined up to $1,000. For example, an employer who does not complete the I-9 Form for 100 employees could face a $100,000 fine.

Recommended business practices to avoid allegations of I-9 discrimination

•  Employers are at risk of severe penalties for failure to comply with the anti-discrimination provisions of the IRCA. The risk could be minimized by undertaking several steps, including:

• Establishing a regular training program, conducted by an attorney familiar with IRCA rules, regarding I-9 compliance for employers or representatives authorized to fill out the Form I-9 - i.e. Human Resource professionals.

•  Establishing a system to re-verify employment authorization documents in a timely manner. This will reduce the risk employers face of employing an individual with expired documents and will also help ensure the employee’s documents are up to date.

•  Conducting an internal audit of the I-9 files to disclose any pattern of violation requiring remediation. An attorney familiar with the IRCA should supervise this audit.

•  Establishing a quick process in which employers or human resource professionals can check in with an attorney regarding I-9 verification questions.

Overall, while the I-9 process can seem straightforward on the surface, it can be incredibly easy for the most well-intentioned employers to unwittingly commit IRCA violations. Rather than risk being subjected to an audit by the Department of Justice and substantial penalties, employers should consult with an attorney to review their employment verification process and ensure that everyone involved is in strict compliance with IRCA’s requirements.

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