Employment Authorization Verification
The Immigration Reform and Control Act of 1986 (IRCA) makes it unlawful for an employer to hire, recruit or refer for a fee anyone who the employer knows is not authorized to work in the United States. Form I-9, the Employment Eligibility Verification Form, is used by employers to comply with the provisions of IRCA. Employers must complete an I-9 for all individuals who are hired on or after November 6, 1986.
Audits of I-9 records are performed by U.S. Immigration and Customs Enforcement (ICE) and the U.S. Department of Labor (DOL). “Paperwork” violations such as failure to properly complete, retain or make available for inspection Forms I-9 may result in civil money fines between $100 and $1000 per violation on the form occurring before September 29, 1999 ($110 and $1,100 per violation after that date). If the audit reveals that the employer knowingly hired or knowingly continued to hire unauthorized workers, fines can range between $250 and $2,000 per unauthorized worker for offenses occurring prior to September 29, 1999 ($275 to $2,200 for offenses after that date). For a repeat offender (an employer who was previously charged with a violation), fines range from $2,000 to $5,000 per unauthorized worker for pre-September 29, 1999 offenses ($2,200 and $5,500 for offenses after that date). Subsequent violations may be raised to between $3,000 and $10,000 per worker for pre-September 29, 1999 offenses ($3,300 and $11,000 for offenses after that date). An employer who is found to have engaged in a pattern or practice of knowingly or continuing to employ unauthorized persons, or who has engaged in fraud, document forgery or making false statements or entries on Forms I-9 may be subject to criminal penalties as well.
IRCA also requires employers to ensure that a Form I-9 is completed for each employee hired after November 6, 1986 and that each employee’s current employment authorization is verified again when appropriate. In other words, each time an employee’s work authorization is due to expire, or changes, the employer is charged with reviewing the new work authorization documents and completing I-9 information or, if work authorization expires with no extension or new authorization granted, taking appropriate steps to terminate the employment of the unauthorized foreign national.
Employers with four or more employees are subject to the Immigration and Nationality Act’s prohibition against discrimination based on national origin and citizenship status. To that end, employers are not allowed to request specific employment authorization documents from employees; an employee has the right to choose which documents to submit to an employer for verification so long as they are government-approved documents that prove identity and employment authorization.
For a complete discussion on I-9 procedures, and further guidance on establishing policies for determing employment authorization, please refer to our I-9 Handbook.