Counseling Indviduals and Companies of all International Backgrounds with Immigration Matters to Living and Working in the United States

I-9 Enforcement
The Immigration Reform and Control Act (IRCA) has been law since 1986. It has two main requirements of employers: (1) To hire only persons authorized to work in the United States, and (2) To not discriminate on the basis of citizenship status or national origin.

IRCA was enacted to control unauthorized immigration to the United States. Under IRCA, employers may be sanctioned by the Department of Homeland Security's (DHS) two primary immigration related agencies, the United States Citizen and Immigration Service (USCIS) and Immigration and Custom Enforcement (ICE), for knowingly hiring non-U.S. citizens who are not authorized to work in the United States. Since 1986, all U. S. employers have been required to complete USCIS Form I-9 to verify the employment eligibility of all new hires. This process requires employers to attest that they have verified a new employee’s eligibility to work legally in the United States after examining the employee’s identity and employment authorization documents within the first three days of employment. Currently, participation in E-Verify is mandatory for all federal contractors and subcontractors, and several states have also implemented legislation requiring employers to confirm a new hire’s employment eligibility through the electronic system. Worksite enforcement actions range from an Immigration and Customs Enforcement (ICE) Notice of Inspection Letter (NOI) informing an employer that ICE will be reviewing its compliance with the employment eligibility laws through an audit of I-9 forms, to a law enforcement action involving employees at a job site, and the possible implication of the employer's officers. Worksite enforcement actions are complicated and often involve a range of immigration and discrimination laws that carry potential civil and criminal sanctions. The employer sanctions provisions of IRCA prohibit employers from hiring, recruiting, or referring for a fee aliens known to be unauthorized to work in the United States. Violators of the law are subject to a series of civil fines for violations, or criminal penalties when there is a pattern or practice of violations.

Back to Top

Under IRCA, there are two types of violations:

Record Keeping Violations
Employers are required to document the employment eligibility status of each employee hired, recruited or referred for a fee after November 6, 1986. This is done by executing USCIS Form I-9, which must be completed both by the employee and the employer, under penalty of perjury. Failure to complete the I-9 properly and failure to retain the form for the specified period can result in fines for each record keeping violation.

Hiring Unauthorized Workers
Employers (and their employees or agents) may also be fined for "knowingly" hiring, recruiting or referring for a fee "unauthorized aliens." "Knowingly" has been interpreted to include "constructive knowledge," which means that a violation can be "knowing" if a reasonable, average employer should have been on notice that the employee lacked proper eligibility to engage in employment in the U.S.. "Constructive notice" can occur when an employee fails to submit the appropriate documents, present obviously fraudulent documents, or when the employer had other information from which a reasonable person could conclude the worker was not authorized. An unauthorized alien includes aliens who are not lawfully present in the U.S. as well as any alien legally in the U.S. who is not authorized to work by USCIS or another U.S. Department of Homeland Security (DHS) component. As with record keeping violations, the employer may be fined for every unauthorized alien hired after November 6, 1986. It is also important to note that an employer can also be held criminally liable for having a "pattern or practice of knowingly hiring unauthorized aliens."

IRCA violations are typically investigated and enforced by the U.S. Immigration and Customs Enforcement (ICE) component of DHS. ICE investigations are initiated as a result of:

  • Random or targeted industry audits;
  • Tips from workers, competitors, and others;
  • Referrals from other government agencies, such as the U.S. Department of Labor's (DOL) components (Wage and Hour Division, Office of Foreign Labor Certification, Occupational Safety and Health Administration), USCIS, the Internal Revenue Service (IRS), or other agencies that discover inconsistencies or problems in the course of their normal activities.
Back to Top