Overview: Employers must comply with the Immigration Reform and Control Act (IRCA), which requires employers to verify the identity of their employees and requires employment eligibility verification of their authorization to work in the US. In order to do so, employers and employees are required to fill out a Form I-9, and it is mandatory that the employee provide documentation to the employer verifying his or her identity and work authorization.
While employers need to be diligent about completing the Form I-9, they should not be so overzealous that they end up penalizing or discriminating against authorized workers. On the other hand, employers that do not comply with the employment eligibility verification provisions of IRCA can be subject to penalties - civil and criminal. Therefore, employers should develop an effective compliance program in order to avoid such penalties and consider enrolling in E-Verify if not already required by state law or by the federal contractor rule.
Trends: The US Immigration and Customs Enforcement (ICE) has significantly stepped up enforcement against employers. In fact, in the last five years there has been a 600% increase in Form I-9 audits by ICE. In 2012, ICE sought $12.48 million in administrative fines for illegal employment practices. Further, ICE worksite investigations resulted in the arrests of 240 managers, supervisors and HR employees harboring or knowingly hiring illegal aliens. All industries, regardless of size or location, are “fair game” for worksite investigations by the government to ensure that employers are hiring authorized workers.
Further, as a result of President Obama's deferred action plan for childhood arrivals, employers must ensure that those individuals provide the proper documentation as required by the Form I-9 demonstrating his or her identity and eligibility to work in the US. Also, several states have passed legislation or issued executive orders attempting to enhance the IRCA prohibitions on unauthorized employment. Those laws impose sanctions on employers (in addition to those already in effect at the federal level under IRCA) who knowingly hire or continue to employ unauthorized workers.
Author: Melissa A. Silver, JD, Legal Editor
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