The Immigration Reform and Control Act of 1986 (IRCA), which amended the Immigration and Nationality Act, applies to all employees hired after November 6, 1986. The sanctions of IRCA fall into three broad categories: (1) employment of authorized foreign nationals, (2) recordkeeping, and (3) discrimination.
IRCA prohibits employers from knowingly hiring unauthorized aliens or maintaining them on the payroll once their employment authorization expires. IRCA also requires employers to verify on Form I-9 the identity and authority to work of all employees; prohibits intentional discrimination in employment because of an applicant's national origin, citizenship, or immigration status; and makes it an unlawful immigration-related employment practice to, among other things:
- request more or different documents than are required to verify employment eligibility,
- refuse to accept any documents that appear facially legitimate, or
- attempt to retaliate against or intimidate employees who exercise their rights under the law.
Civil fines and criminal penalties can be imposed against employers that persistently ignore the requirements of IRCA, and the number of Form I-9 audits conducted by U.S. Immigration and Customs Enforcement (ICE) has steadily increased in recent years. At the same time, the federal government has developed the “E-Verify” system as an additional tool that employers can use to confirm I-9 compliance, and many states have passed legislation mandating the use of E-Verify. Under the new administration, immigration compliance is a particular focus of its legal enforcement efforts. Therefore, compliance with IRCA now is even more critical.
The national Immigration Law Group at Epstein Becker Green (ILG) has a deep knowledge of immigration and anti-discrimination laws and works with clients to ensure that they stay in compliance with IRCA. Our services in this area include, among other things:
- Conducting an internal audit of Forms I-9 to make sure that they are accurate, complete, and current
- Fixing all correctable errors on the forms
- Ensuring that all I-9 policies and procedures are up to date and applied uniformly
- Training staff on the best practices for completing, verifying, and storing Forms I-9
- Advising on the wisdom of enrolling in E-Verify or the federal government’s IMAGE program, and assisting clients to address questions arising under those programs
- Advising clients operating in multiple states on their Form I-9 obligations under state and federal law
- Advising organizations in mergers and acquisitions on the necessary Form I-9 due diligence and what contractual provisions are required to protect organizational interests from unexpected Form I-9 liability
- Defending clients against claims of discrimination and/or unlawful immigration-related employment practices under IRCA
In addition, several ILG lawyers are former federal prosecutors. If ICE accuses a client of violating IRCA’s provisions, we help the client prepare for an ICE audit and avoid the federal employer sanctions, negative publicity, and business interruption that could result from the audit. We also defend the client in ICE civil enforcement proceedings and criminal prosecutions.
The ILG is available to provide guidance to any employer with questions in this area.