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 Department of Justice, Office of Special Counsel (OSC) has been actively enforcing the anti-discrimination provisions of the Immigration and Nationality Act (INA) as amended by IRCA, for unfair immigration related employment practices. In particular, the OSC has been pursuing cases against employers where they engage in document abuse by insisting upon specific documents from the lists of acceptable Form I-9 documents, by attempting to prescreen applicants before extending an employment offer to them; or acting with discriminatory intent against protected individuals.
Further, the US Immigration and Customs Enforcement (ICE) continues to audit and indict employers throughout the country for falling short in Form I-9 compliance. In fact, in Fiscal Year 2013, 14 Massachusetts employers were fined more than $175K in total. The fines resulted from investigations and audits of Form I-9, Employment Eligibility Verification, documents.
Author: Melissa A. Silver, JD, Legal Editor
Updated to reflect new STEM Optical Practical Training extension rules, effective May 10, 2016.
Updated to reflect forthcoming E-Verify requirements.
According to US Citizenship and Immigration Services (USCIS), employers should continue to use the current version of Form I-9, Employment Eligibility Verification, even though it expired on March 31, until a new form is finalized and posted for use. USCIS has also announced that it has extended the comment period until April 27, because it has made additional proposed revisions to the form.
Updated to reflect amended national origin discrimination regulations regarding policies requiring employees to hold a driver's license, effective April 1, 2016.
Updated to reflect information regarding the forthcoming revised Form I-9 and its instructions.
The Immigration, Form I-9 and Work Visas section of the Employment Law Manual has been expanded to included recent developments employers should be aware of in order to ensure compliance.
Updated guidance to reflect the expansion of the definition of unlawful employment practice to include using E-Verify in a manner not required by federal law, effective January 1, 2016.
The Form I-9 and Immigration Issues Resource Center can be used as a tool to help subscribers comply with the Form I-9 process, as well as various immigration policies and requirements.
US Citizenship and Immigration Services (USCIS) has published a notice and comment request in the Federal Register regarding proposed changes to Form I-9, Employment Eligibility Verification. Many of the proposed changes would reduce technical errors and help employers and employees complete the form on their computers after downloading it.
On January 1, 2016, E-Verify must delete transaction records that are more than 10 years old, in accordance with the National Archives and Records Administration's (NARA) retention and disposal schedule. An employer that used E-Verify before December 31, 2005, that wants to keep a record of its case information should download and save the new Historic Records Report by December 31, 2015.
Guidance for HR on completing the Form I-9 for new hires in compliance with federal law. Support on proper employment eligibility verification.