What procedures must an employer follow when it comes to immigration?

The Immigration Reform and Control Act (IRCA) establishes procedural requirements that every employer must follow to make sure that each of its employees is eligible to work in the United States. The Act prohibits an employer from knowingly hiring an unauthorized alien or anyone without complying with the procedural requirements of the Act. But what is it that an employer must do to ensure that it is obeying the law?

The procedural requirements of IRCA are often called the “paperwork requirements.” The employer must file a Form I-9 within three days of hiring a new employee to comply with the Act. Form I-9 requires an employee to provide documentation of his identity and work eligibility and that an employer verify that documentation.

The employee’s identity and work eligibility can be verified by one of two ways. First, an employee can provide a document that establishes both his identity and work eligibility, such as a U.S. passport. Alternatively, an employee can provide two separate documents—one that establishes identity (e.g. a driver’s license) and one that establishes work eligibility (e.g. a social security card).

Once the employer verifies these documents and both the employer and employee have signed the form, the employer has complied with the “paperwork requirements.” The employer must also keep of a copy of the employee’s Form I-9 for either three years after the hiring date or one year after the termination date. If the employer has made a good faith attempt to fulfill these requirements, then it will not be open to liability from Immigration and Customs Enforcement (ICE).

These provisions are enforced by ICE which can initiate an investigation at any time of its own accord. So, ICE does not to receive a complaint before beginning an investigation. Should ICE find a violation, employers can face civil and criminal penalties. ICE usually begins an investigation by mailing an employer a Notice of Inspection, which requires an employer to make documents regarding the employer and its employees (payroll records, articles of incorporation, and Forms I-9) available for inspection within three days.

After the investigation, ICE will either issue a Notice of Compliance, a Notice of Deficiency which requires some corrective action, a Notice of Suspect Documents, or a Notice of Intent to Fine. The Notice of Intent to Fine must list each separate violation and the proposed penalty for each, and the employer can contest the violation by requesting a hearing before an Administrative Law Judge within thirty days of the Notice.

As mentioned above, an employer who made a good faith attempt to comply with the Act is protected from penalties. Similarly, an employer who has relied on state agency documentation, for example documentation form the Texas Workforce Commission, in verifying an employee’s work eligibility may be protected from penalties.

The Act does except some employees from its requirements. An employer is not required to complete Form I-9 for an employee hired before the effective date of the Act—November 7, 1986. However, this only applies if the employee has remained in continuous employment with the employer.

Also, an employer does not have to re-verify an employee who comes back from certain leaves of absence such as taking paid vacation, paid leave for illness, or going on a strike. Further, the procedural requirements do not apply to domestic service employees who work on an irregular basis.

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