The Immigration Reform and Control Act (IRCA) makes it illegal for an employer to knowingly hire, or to continue to employ, an individual who is not authorized to work in the U.S. In accordance with the requirements established under the Act, employers are required to verify the employment eligibility of all new hires.The United States Citizenship and Immigration Services (USCIS) as well as the Department of Homeland Security (DHS) enforce the requirements placed under the IRCA. Among other things, these agencies are designed to assist employers in maintaining a legal workforce and in protecting the jobs of legally authorized workers.

Verifying an employee’s work eligibility is a process all employers must do. But understanding your responsibilities in the process isn’t so simple. Below are the legal guidelines employers must follow when verifying employment eligibility:

1. Require new hires complete an I-9. Upon hire, all new employees are required to complete an I-9 form and supply related documentation that demonstrates their work eligibility, such as a driver’s license and social security card or a U.S. passport. Acceptable forms of documentation are listed on the last page of the form. Employers are required to examine presented documentation, record the document title and number on the form, and provide their signature attesting to their review of the documents. Employers may, but are not required to, photocopy the documents presented by employees. If photocopies are made they must be retained with the I-9 form. Recently, a new version of the I-9 form with an updated expiration date was released. Going forward, employers are required to use the updated I-9 with all new hires. Click here for the updated form.
2. Retaining I-9s. The I-9 form is not required to be submitted to any government agency; however employers must make it available for inspection by U.S. government officials. The document is required to be retained for three years following an employee’s date of hire or one year following their termination, whichever is later. Because I-9s contain age and citizenship information, it is probably best to retain them in a locked file, separate from other personnel files.

3. Rehired employees. Employers are not required to re-verify the work status of individuals they previously employed if the worker is rehired within 3 years of the initial execution of the I-9 form.
4. E-Verify. Recently, some states have required the use of E-Verify. E-Verify is an Internet-based system available to employers by the Department of Homeland Security (DHS), free of charge. The program links to federal databases to help employers determine employment eligibility of new hires and to verify the validity of new employees’ Social Security numbers. Click here to register. Although E-Verify offers further protection in ensuring employees are authorized workers, employers using E-Verify must still require new hires to complete an I-9. The following states mandate the use of E-Verify when hiring certain types of employees: Arizona, Alaska, Mississippi, Georgia, Colorado, Oklahoma, and Rhode Island. Most of these states require the use of E-Verify among contractors and sub-contractors with a certain number of employees. Check your state E-Verify requirements in the Aliens & Immigration section of our State & Federal Laws.
5. Good faith efforts. Employers must make “good-faith” efforts to comply with the USCIS regulations. This means that employers must follow the requirements of the IRCA and make reasonable efforts to ensure employment eligibility. Employers that can demonstrate their good faith efforts to comply with the IRCA, are typically protected against fines and penalties.
6. Penalties. Employers may be assessed civil penalties for hiring or continuing to employ unauthorized aliens, failing to comply with Form I-9 requirements, or not requiring identification. Failure to properly complete and retain Form I-9 subjects employers to civil penalties ranging from $100 to $1,000. Employers are also subject to criminal penalties for engaging in a pattern or practice of knowingly hiring or continuing to employ unauthorized aliens; engaging in fraud or false statements; or misusing visas, immigration permits, or identification documents. Employers that hire illegal aliens can also be debarred from federal contracts for one year.

Employers must make every reasonable effort to ensure new hires are authorized to work in the United States. By following the guidelines outlined above, employers can ward against the stiff penalties associated with failing to comply with USCIS and DHS requirements. For more information on the USCIS and how immigration laws affect your business, visit the USCIS website.