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I-9 / IRCA | Legal Worker | IRCA Anti-Discrimination | Form I-9 Compliance & Auditing | More Information

The Immigration Reform and Control Act of 1986 (IRCA) requires that all employers must verify that every person hired after November 6, 1986, is either a U.S. citizen, permanent resident, or a foreign national authorized to work in the United States. The mechanism for employment verification compliance is the I-9 Employment Verification Form which every worker must complete on the day of hire or earlier. The employee must complete the first section of the I-9 form and must provide the required supporting documents within three days of the date of hire. If the documents are not presented by that point, the employee must be removed from the payroll (though it is permissible to suspend the worker rather than terminating the worker all together).

The employee must present documents establishing their identity and employment authorization to accept employment in the United States.  Acceptable documents that establish both identity and employment authorization according to the new I-9 as of Aril 3, 2009 are: 

1. US passport or US passport card
2. Permanent Resident Card or Alien Registration Receipt card (Form I-551)
3. Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa
4. Employment Authorization Document that contains a photograph (Form I-766)
5. In the case of a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport with Form I-904 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 restrictions or limitations identified on the form
6. 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

For acceptable documents for Lists B and C, please refer to the instructions on the new Form I-9, OMB No. 1615-0047 (Expires - 06/30/2009).  The employer must examine each document presented and record information concerning the documents, including document identification numbers and expiration dates.  Employers should establish procedures to re-check documents with expiration dates, such as non-immigrant visas, I-94 cards and CIS Employment Authorization Documents.

The employer must examine each document presented and record information concerning the documents, including document identification numbers and expiration dates.  Employers should establish procedures to re-check documents with expiration dates, such as non-immigrant visas, I-94 cards and CIS Employment Authorization Documents.

Illustrations of these documents can be found in Part 8 of the Handbook for Employers (M-274).

The employer must examine each document presented and record information concerning the documents, including document identification numbers and expiration dates.  Employers should establish procedures to re-check documents with expiration dates, such as nonimmigrant visas, I-94 cards and USCIS Employment Authorization Documents.

Managing I-9 documentation and verification is a significant challenge for employers across the United States. Companies want to confirm an employee's work status as soon as possible and meet the I-9 compliance guidelines.  Egregious violations could lead to aggressive criminal prosecution.  The damage to a company's brand, morale, and reputation could be devastating.

Regardless of a company's size, location, or industry, the DHS is increasingly enforcing immigration compliance standards and sanctioning companies with poor records. Criminal penalties and arrests for immigration-related violations continue to grow every year.

While all employers should be diligent about complying with IRCA's employment verification rules, they should also be cautious not to overstep boundaries such that qualified prospective employees are penalized. IRCA requires employers to refrain from unfair immigration-related employment practices (UIREP).  The Act prohibits employers from committing employment discrimination against a worker because of his or her citizenship status or national origin. Employers are also prohibited from committing "document abuse" in the employment verification process. Document abuse occurs when an employer requests more or different documentation of a worker's identity or employment authorization, or refuses to accept proper documents. IRCA's anti-discrimination rules are very clear and its sanctions could be very severe. Under IRCA, employers cannot refuse to employ or terminate the employment of individuals based on their national origin or citizenship status. UIREP violations are investigated and litigated by the Office of Special Counsel, a Civil Rights Division of the Department of Justice. The Office of Special Counsel has caused employers to pay over $1 million in back-pay to workers, has required employers to rehire workers, and has levied fines totaling hundreds of thousands of dollars.

Penalties:  IRCA provides an array of penalties for employment violations. An employer who has committed "paperwork violations" for mistakes in completing I-9 forms or failure to maintain I-9 records is subject to penalties of $110 to $1,100 for each violation. An employer who knowingly hires or continues to employ foreign nationals not authorized to work in the United States is subject to first offense civil fines of $250 to $2,200 for each unauthorized worker, and fines of up to $11,000 for subsequent offenses. In addition, if it is established that the employer had a "pattern or practice" of knowingly hiring or continuing to employ unauthorized workers, criminal penalties, including fines and prison terms, are possible. Employers who commit document fraud – e.g., fraudulently completing an I-9 form or knowingly accepting a forged or counterfeit document for verification purposes – are subject to first offense fines of up to $2,200 for each occurrence and up to $5,500 for subsequent offenses. In addition, employers who knowingly hire or continue to employ unauthorized workers may be barred from participating in contracting relationships with the federal government. Note that IRCA penalties may also be assessed against an employer who used unauthorized workers through a relationship with an independent contractor and who knew or had reason to know that the workers were ineligible for employment in the United States.

Immigration Compliance Group is focused on proactively aiding our clients in developing and maintaining compliant immigration related employment practices.  Our firm provides comprehensive I-9 policy review and consulting, step-by-step transition plans, training sessions, assistance in developing new hire procedures, reporting and communications, audits and conversion of historical data, and government audit support service.   As part of our process, we will also work with you to make any corrections required on your employees I-9 Forms.  Our I-9 Auditing and Compliance Services will assist employers in:

• Achieving overall compliance with Immigration Laws.

• Providing a confidential "Risk Assessment Report" on their overall Form I-9 program and making proactive recommendations for reorganization and simplification.

• The implementation of a verification program that will ensure all employers are in compliance with Immigration Laws.

• The certification and verification of the employment eligibility and identity of all employees pursuant to Form I-9 requirements.

• Internal training on all Form I-9 requirements and procedures including but not limited to:

• How to complete the Form I-9;
• The re-verification of the Form I-9;
• Achievement and maintenance of compliance with Immigration Laws.
  
  
• The creation of a comprehensive and customized Compliance Plan containing a detailed description of the overall requirements for complying with Immigration Laws.

• Establishing procedures to correct violations discovered during a Form I-9 audit.

For more information on Employer Compliance: Employer Compliance Social Security (SSN) No-Match Letter E-Verify (Formerly Basic Pilot) H-1B - LCA Compliance Mergers & Acquisitions Immigration Due Diligence Employer Compliance Services & Solutions

Immigration Compliance Group works proactively with its clients to provide comprehensive assistance in developing and maintaining best practices necessary to assure compliance with USCIS, ICE, SSA and DOL regulations.

Employer compliance is becoming more complex and enforcement (investigations and audits) is increasing. In order to effectively deal with these issues and avoid the very severe consequences for non-compliance, employers must take the time to develop a strategy and be prepared in advance with an Immigration Compliance Program.

Immigration Compliance Group will customize such a program for you and will provide onsite or telephonic training, consulting, and document auditing in all of the areas mentioned above, as well as provide ongoing compliance updates. For more information on our services, please contact us at info@immigrationcompliancegroup.com