It’s the Law: Complete I-9 for Every Employee

IRCA requires United States employers to hire only persons who may legally work here: citizens and nationals of the United States and aliens authorized to work.

IRCA makes all U.S. employers responsible for verifying the identity and work authorization or eligibility of all employees, whether U.S. citizens or not, hired after November 6, 1986. To implement this, employers are required to complete Employment Eligibility Verification Form I-9 for all employees.

An employer’s obligation to review documents is not triggered until a person has been hired, whereupon the new employee is entitled to submit a document or combination of documents of his or her choice to verify his or her identity and work eligibility. In addition, the law obliges employers not to discriminate against individuals on the basis of national origin or citizenship, or to require more or different documents from a particular individual.

The law requires an employer to:

a.    Ensure that employees fill out Section 1 of Form I-9 when they start to work.

b.    Review documents establishing each employee’s identity and eligibility to work.

c.    Properly complete Section 2 of Form I-9.

d.    Retain Form I-9 for three years after the date the employee begins work or one year after the employee is terminated, whichever is later.

e.    Make Form I-9 available for inspection by an officer of the Immigration and Naturalization Service, the Department of Labor, or the Office of Special Counsel for Immigration Related Unfair Employment Practices upon request.

An employer can incur liability under the employer sanctions provisions of IRCA by knowingly hiring an unauthorized alien. It is unlawful for an employer to hire an “alien” knowing that he or she is not authorized to work in the United States. To do so is a “knowing” or “substantive” violation of the law.

The I-9 serves two functions:

1.    Allows employers to assist the U.S. Citizenship and Immigration Service (USCIS), formerly known as the INS, in enforcing the immigration laws.

2.    May be used as evidence against an employer who fails to properly complete and store the I-9 forms, whether or not any of its employees are illegal aliens.

Making the task of ensuring compliance with IRCA more difficult are the non-discrimination provisions found in the act. Under IRCA, employers are liable for any discrimination, whether intentional or inadvertent, that results from an overzealous attempt to comply with the provisions of IRCA. Employers must be especially careful how they render and phrase hiring and termination decisions. Employers who engage in practices or policies that consider the immigration status of a worker may trigger IRCA’s anti-discrimination provisions.

In a nutshell, the I-9 process may not be used to pre-screen employees for hiring. Furthermore, an employer may not demand more or different documents than an employee chooses to present, provided that the documents presented are acceptable under the I-9 requirements. Likewise, employers may neither require nor accept more documentation than the minimum necessary to substantiate identity and work eligibility.

As many employers know, there’s a two-edged sword with IRCA. You have to ensure that you are hiring properly documented workers – by and through the I-9 process – while at the same time ensuring that the process is not being used to discriminatorily screen out employees. But following proper procedures and policies and maintaining appropriate paperwork will provide employers the tools they need to comply with IRCA and avoid costly fines and/or lawsuits in the future.

Mike Lissau, an employment law expert with Hall Estill, wrote this article. You can reach him at mlissau@hallestill.com.