Who is Covered

Nearly every employer in the United States is covered by the law requiring them to verify the work eligibility of new hires. Employers of four to 14 employees are covered by Section 102 of the law, which prohibits discrimination against foreigners who are eligible to work. Thus, this section fills in the gaps in national origin discrimination law left by Title VII, which applies to employers of 15 or more employees.

Section 102 includes exceptions for the following:

• employers having three or fewer employees,
• discrimination covered under Title VII, and
• discrimination based on citizenship status where such status is required by federal, state, or local law, or by government contract.

The IRCA, an amendment to the Immigration and Nationality Act, prohibits knowingly employing aliens who are not legally authorized to work in the United States and/or legal nonimmigrants whose classification does not permit employment in this country. The IRCA requires employers to certify the identity and employment eligibility of all employees hired after November 6, 1986. The employer must review the employee’s certification within three days of hiring.

The IRCA also contains antidiscrimination provisions that make it an “unfair immigration-related employment practice” to discriminate in the recruitment, hiring, or termination of any individual on the basis of national origin or citizenship. The Immigration Act of 1990 expanded the IRCA’s definition of unfair immigration-related employment practice to include: requesting more or different documents evidencing identity or work authorization than those required by Immigration and Nationalization Services (INS) regulations; rejecting apparently valid identity or work authorization documents; and attempting to intimidate and/or retaliate against employees for exercising rights protected by the IRCA. Therefore, it is discriminatory for employers to refuse to consider a person for employment simply because they suspect that the applicant is an unauthorized alien. Employers are permitted to verify the applicant’s legal status only after an offer of employment has been accepted.

Employers are required to verify the work eligibility of all new hires by completing a special form (Form I-9). On this form, an employer must list the document(s) examined to establish identity and work authorization, and the employer must attest to the fact under penalty of perjury that these documents were genuine. The new hire must also attest that he or she is a citizen, permanent resident alien, or otherwise authorized to be employed in the United States. These forms are considered sworn statements under oath, with falsification punishable under federal criminal law by a fine of up to $2,000 and imprisonment for up to five years. The individual must sign the document.

The completed I-9 forms do not need to be sent to the INS. However, the documents must be kept on file for at least three years from the date of hire. If an employee remains with the company after three years, the I-9 must be kept until one year after the person leaves the company. The forms are subject to inspection by the INS, and they must be kept in your place of employment or in a central office, provided they can be produced within 72 hours. The INS does not need a subpoena or warrant to inspect the forms, and it does not have to give you more than three days’ notice.

The INS regulations note that you may photocopy and attach to the I-9 the identity and work authorization documents provided by the employee, although it is not a requirement. One note of caution: The amended regulations state that making such copies for only individuals of certain national origins or citizenship status may violate IRCA’s antidiscrimination provisions. Therefore, if documents are going to be photocopied, they should be photocopied for all new hires.

The I-9 forms and any photocopied documentation should be kept separate from other personnel files, since the regulations specify that these documents and the information they contain are to be used solely for the purpose of complying with the IRCA.