Simple compliance steps to avoid IRCA violations


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Most employers first familiarize themselves with the Immigration Reform and Control Act ("IRCA") by fulfilling their obligations to complete Form I-9 for every hired employee. Form I-9 must be completed no later than three days of employment (or the first day of employment if less than three days).

Failure to do so is a violation of the IRCA.

The I-9 form verifies both the employee's identity and the work permit.

Since employees are required to provide original documents containing this information, many employers inform employees of the required documents at the time of the job offer.

I-9 consists of three parts.

The first part is completed by the employee.

If there are inconsistencies in the information in Part I of the form or inconsistencies with the documents submitted by the employee, the form should not be accepted by the employer.

The employer must review the documents submitted by the employee (note that the employee has the right to submit documents of his choice, provided they are among the documents listed on the I-9) for verification by the employer .

"A" documents constitute both identity and permission to work and therefore a single document can serve both purposes. These documents cannot be replaced because Congress has mandated the list. An expired passport is an acceptable A-document. Employers cannot require an employee to present a Social Security card, but a card can be shown if the employee wishes.

"B" documents establish identity 

"C" documents establish work permit.

Some “receipts” are acceptable

“C” documents: the receipt for requesting a replacement document; the arrival portion of an I-94 form with a photo attached and a temporary I-551 stamp; and the departure portion of Form I-94 with a lodging entry stamp.

The original documents must be returned to the employee; the employer may keep a copy.

The I-9 must be kept for three years or one year after termination of employment, whichever is longer.

Under the IRCA, all employers, regardless of size, are prohibited from

(1) knowingly hiring, recruiting, recommending, or continuing to employ any person not authorized to work in the United States. States to work;

(2) continue to employ a foreign national knowing that he or she is no longer eligible to work in the United States; and

(3) hire anyone, whether a US citizen or a foreigner, without following IRCA's record-keeping requirements. Heavy fines are imposed on employers who violate the IRCA bans.

An employer can discriminate in several ways under the ICRA (and under the laws of the EEO).

One form of discrimination is hiring only people who are citizens of the United States.

A person does not need to be a citizen to work legally in the United States.

An employer is not even allowed to ask if a candidate is a citizen.

Discrimination based on national origin (for example, place of birth, ancestry, mother tongue, accent or foreign appearance or sound) will be found when an employer treats employees differently based on their national origin.

Discriminatory documentation practices can also lead to a violation of the IRCA.

This can be done in one of four ways:

(1) asking employees to produce more documents than are required for the I-9 verification process;

(2) request an employee to provide a certain type of document (for example, a "green card");

(3) refuse documents that appear to be reasonably authentic and belong to the employee presenting them; and

(4) treating different groups of employees differently, such as requiring those who look "foreign" to submit more documents than those who do not look foreign. The IRCA also protects an employee from retaliation by the employer.

Employers should be careful not to take adverse action because someone is claiming rights under IRCA.

Using independent contractors can also pose problems for an employer under IRCA.

The IRCA does not require an employer to file an I-9 for its contractors (because they are not "employees").

However, it can be determined that the employer is violating IRCA by using independent contractors in two ways.

First, if the relationship is not that of an independent contractor, failure to complete I-9 forms by the employer for persons providing services under a contract is a violation.

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