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: One of the biggest changes to the Form I-9 is that it now gives an employer and an employee the option to either complete the Form I-9 on the computer (i.e. smart form) or on paper, or a combination of both. If completing the smart form on the computer, one of the biggest enhancements is that an employer and employee will be able to access embedded instructions in the fields to be completed.
Author: Melissa A. Silver, JD, Legal Editor
Updated to reflect forthcoming new hire notice requirements regarding wage theft.
Updated to include notice requirements for employers regarding a federal agency inspection, effective June 6, 2019.
Updated to reflect notice requirements under the Pregnancy Accommodations Act, effective September 14, 2018.
Updated to include information on a court decision regarding the state immigration worksite enforcement law.
Updated to reflect information on court decision regarding Deferred Action for Childhood Arrivals.
Updated to reflect increase in immigration-related penalties, effective January 29, 2018.
Updated guidance to reflect new requirements and prohibitions on employers subject to immigration enforcement actions, effective January 1, 2018.
Effective January 1, 2018, the Immigrant Worker Protection Act will require employers in California to demand that immigration enforcement agents obtain a subpoena or judicial warrant before entering nonpublic areas of their workplaces or accessing certain employee records.
Employers must use the updated version of the Form I-9, Employment Eligibility Verification, starting September 18, 2017.
Guidance for HR on completing the Form I-9 for new hires in compliance with federal law. Support on proper employment eligibility verification.