Laws You Should Know, The Immigration Reform and Control Act

03/05/07

You know the Immigration Reform and Control Act (IRCA) from its provision that you fill out an I-9 form whenever you hire. But it includes other provisions that affect you as well. Here are its major components.

I-9 Form. This is the form that ensures you verify that each new hire is authorized to work in the U.S. by looking at a passport, Social Security card, resident alien card, or some combination of many other documents that establish identity and legal ability to work in the U.S. (See the I-9 form for a complete list of acceptable documents).

You must keep the form on file for at least three years from the date of employment or for one year after the employee leaves the job, whichever is later. You must also make the forms available to government inspectors upon request.

Because many work authorization documents need to be renewed on or before their expiration date, you must update the I-9 form. When you reverify the document, you must accept any valid documents your employee chooses to present, whether or not they are the same documents provided initially. (Note: You do not need to see an identity document when the I-9 form is updated.)

Penalties. IRCA, which is actually an amendment to the Immigration and Nationality Act, also establishes penalties for hiring illegal aliens. While there’s some leniency for first offenses, financial penalties mount for repeat offenders.

Anti-discrimination provisions. When you think of anti-discrimination laws, you probably think of Title VII of the Civil Rights Act. But IRCA also contains anti-discrimination provisions-—and unlike Title VII, which applies to employers with at least fifteen employees, IRCA’s provisions apply to employers with as few as four employees.

A special Department of Justice office investigates three kinds of discrimination:

Citizenship-status discrimination. This type of discrimination occurs when people are fired or rejected for employment because they are not U.S. citizens, because of their immigrant status, or because of the type of work authorization they hold.

National-origin discrimination. Such discrimination occurs when people are fired or rejected for a job because of their place of birth, country of origin, ancestry, native language, accent, or because they are perceived to be “foreign”.

Document-abuse discrimination. This occurs when an employer requests more or different documents than are required by the I-9 form to verify employment eligibility and identity. It also occurs when employers reject genuine-looking documents.

IRCA’s anti-discrimination provisions come with teeth—the Department of Justice has recovered more than $3 million in back pay and penalties since the law took effect.

The bottom line: Fill out and file I-9 forms for all employees, and treat all employees and potential employees the same regardless of citizenship status.