Several years ago, Congress passed the Immigration Reform and Control Act of 1986 (the Act), representing the most comprehensive revision in U.S. immigration laws in 35 years. The Act prohibits the unlawful employment of aliens and establishes an employment eligibility verification system designed to prevent the employment of unauthorized aliens.

Employer sanctions are one of the cornerstones of the Act. The sanctions may be imposed on any employer, regardless of size, and include both civil and criminal penalties.

Recently, we have discovered that an increasing number of employers have inadvertently failed to comply with the Act. This article is intended as a reminder to our clients about their responsibilities under the Act. Specifically, it addresses the Act's application, verification, and recordkeeping requirements, employer sanctions, antidiscrimination provisions, and offers some tips for compliance.

Application Of The Act

The employment provisions of the Act apply to individuals hired after November 6, 1986. The general rule is that it is unlawful to:

1. knowingly hire unauthorized aliens;
2. hire employees without complying with the employment verification system established by the Act; or,
3. continue to employ an alien hired after November 6, 1986, knowing the alien is or has become illegal.

Under the Act, all employees hired after November 6, 1986, are subject to the verification procedures and employers may not hire aliens who do not have work authorization.

The regulations issued under the Act create limited exceptions. For example, the term "employee" does not include domestic servants in private homes, provided that the employment is "sporadic, irregular, or intermittent." In addition, independent contractors are not covered by the rules. The existence of independent contractor status must be determined on a case-by-case basis, taking into account several specific factors. An employer may not designate someone as an independent contractor just to avoid the verification requirements of the Act.

Verification and Recordkeeping Requirements

The Act requires employers to verify the employment authorization of employees hired after November 6, 1986 -- citizen or non-citizen. An Employment Eligibility Verification Form (Form I-9) must be completed for nearly all new hires. The new employee must complete the first part of the form at the time of hire. The employer must examine documents establishing both identity and authorization to work, and must complete the second part of the form within three business days of the hire. The form must be signed by the employer, attesting under penalty of perjury that it has reviewed the documents identified on the Form I-9. Employers need not complete a Form I-9 for individuals hired on or before November 6, 1986.

The regulations specify which documents are acceptable for verification purposes. Certain documents will establish both identity and employment authorization. An employer need examine only one of these documents. Alternatively, the employee may instead present a combination of two documents to establish employment authorization and identity. Whatever documents are presented, employers must examine the documents to make sure they "reasonably appear on their face to be genuine."

The employer must retain the Form I-9 for a period of three years from the date of employment, or for a period of one year following the date of termination of employment, whichever is later. Form I-9 must also be made available for inspection by officers of the Immigration and Naturalization Service (INS), or designees of the INS, including the Department of Labor (DOL), without subpoenas or warrants, upon three days' notice. Any refusal to present a Form I-9 is a violation of the Act.

The employer may make copies of any documents it examines, establishing both the identity and authorization to work, but is not required to do so. If a copy is made, however, the employer must attach the copy to the Form I-9.

Employer Sanctions

Violations of the Act's employment provisions may result in injunctions, civil, or criminal penalties. An employer found to have knowingly hired an unauthorized alien may be ordered to pay a civil fine for each unauthorized alien ranging from $250 to $10,000 depending on the number of previous violations.

Civil money penalties may also be issued for mere paperwork violations. Employers who fail to comply with the employment verification requirements of the Act will be subject to a civil penalty of between $100 and $1,000 for each violation.

Criminal penalties and injunctions may be issued where a pattern or practice of violations has occurred. The criminal penalties may include a fine of not more than $3,000 for each unauthorized alien, imprisonment for not more than six months, or both.

Antidiscrimination Provisions Affecting Employers

The Act also contains specific antidiscrimination provisions which prohibit discrimination in employee hiring based upon national origin or citizenship status. The antidiscrimination provisions apply to all employees, including both U.S. citizens and aliens. Employers should even-handedly require a Form I-9 and examine documents establishing identity and employment authorization of all individuals hired - not just of foreign-looking applicants or employees. An employer who seeks documentation only from foreign-looking applicants may violate both the Act and Title VII of the 1964 Civil Rights Act.

Tips For Employers

The following are some suggestions for compliance with the Act's requirements:

• Oral and written employment offers should be contingent upon fulfillment of the documentary requirements of the Act.
• Include Forms I-9 in new-hire orientation procedures.
• Establish a record retention/destruction program for Forms I-9.
• Keep Forms I-9 separate from regular employment files, so that the forms may be made easily available to the INS or DOL, and to avoid making personnel decisions based upon information contained in the form.
• Establish a uniform policy regarding the copying of employment authorization documents.
• Establish a tracking system to detect when an employee's temporary employment authorization will expire.