Benjamin Beijing Wang Attorney at Law - Member of AILA

I-9 Compliance

The Immigration Reform and Control Act of 1986 (IRCA) prohibits employers from knowingly hiring, recruiting, referring, or continuing the employment of foreign nationals who are not authorized to work in the US.   Employers violating the IRCA are subject to penalties, including fines, and jail time under certain circumstances.   To avoid the penalties under the IRCA, employers are required to verify the lawful employment status of each person hired by completing a form, the “I-9,”  Employment Eligibility Verification Form, and check specific documents identified by the INS. 

To comply with the IRCA, employers must verify both identity and work authorization.   Certain documents may satisfy both identity and work authorization.  These documents include a US passport and an alien registration card.  Absent these documents, the employer must verify both identity and work authorization by checking required documents.  The employer may check documents such as driver licenses, school ID with photos, voter’s registration cards, and US military cards or other documents to verify identity.  The employer may check social security cards, birth certificates showing US birth, valid employment authorization cards, and other documents to verify work authorization. 

The INS and Department of Labor have the power to monitor and ensure the compliance by employers with the IRCA.   Employers who comply with the I-9 requirements and properly keep records of I-9 forms may have a defense against enforcement actions brought by the INS or Department of Labor for violation of the IRCA. 

The IRCA also prohibits employment discrimination in the verification process.   If the employer verifies only the eligibility of workers who look or sound like foreigners, or to deny such persons work or reject valid proof of eligibility on that basis, the employer violates the IRCA for discrimination against the employees.   The employer is obligated to verify eligibility for employment in the US without discriminating against employees on the basis of their nationality or race.