The Immigration Reform and Control Act (IRCA) is designed to preserve employment for people legally entitled to work in the United States. That, of course, is for Americans and aliens authorized to work here.
IRCA prevents organizations from knowingly recruiting and hiring unauthorized workers, and agencies referring such workers for a fee.
This means organizations must verify both the employment eligibility of all persons, and complete INS form I-9 for documentation purposes.
If employers fail to comply, they face fines in civil and criminal liability. They’re also subject to imprisonment if they repeatedly violate the IRCA. Such employees, of course, are terminated.
With the latest version of the I-9, we’re seeing more I-9 audits, raids on employers, higher fines and required use of E-Verify (the web-based system to confirm eligibility of employees).
Employment verification requirements
When a person is hired, the employer must sign Form I-9 signifying all employee eligibility documents are checked.
The employee must assert that he or she is eligible to work. There’s a verification time limit of three days commencing on the first day of employment.
However, the date can be extended to 90 days if the person provides a receipt for an application for replacement of the document.
I-9 form is only for hired individuals
Just because someone applies for a job it doesn’t mean the employer must complete the I-9. It’s only for people who are actually hired.
Retention of I-9 forms
Starting with the hiring date, the forms must be retained for three years. If persons are terminated, the verification forms must be retained for one year following termination, or whichever date is the longest.
Liability for false I-9 documents
Employers must take reasonable precautions to ensure legitimacy of the documents. However, if employee fraud is later determined, employers aren’t necessarily liable.
Employers must check the documents for proof within three days after people are hired, or get receipts that show the employees applied for the documents.
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Employers must also accept documents submitted by the employees, but cannot request more than IRCA requires.
Original documents are required and they must be fully completed and signed. However, a certified copy of a birth certificate with an official state seal will suffice.
Employers are also responsible to make certain of any expiration dates.
Requirements for rehiring
If an eligible person leaves the organization and is rehired within three years, the original I-9 will suffice. However, if the rehire is more than three years later, a new I-9 is required.
Terminating an employee failing to provide documentation within three days
Employers can fire a worker who doesn’t comply with the law regarding the required documents – either the I-9 or a receipt for a replacement document – within three days.
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Again, if the employee provides a receipt for replacement documents, the employ has 90 days to provide the required documentation.
Employees later deemed to be ineligible to work
Employers aren’t responsible for a document violation, but they cannot knowingly keep the persons employed. If the government can prove employers were aware of a violation, then the employers will be subject to legal action.
Photocopies of documents aren’t allowed
Again, original documents are required. The only exception would a certified copy of the employee’s birth certificate.
From the Coach’s Corner, here is relevant information:
Best Practices with HR Records to Guard against Legal Risks — If you aren’t able to supply relevant documentation, you’ll pay a heavy price. In some cases, you’ll even be forced to give the job back to a nonperforming or toxic employee.
Precautions for HR Documents to Avoid Losing a Legal Case — Managers using best practices in compliance, who are aware of the latest trends and avoid common errors, fare the best against civil litigation, criminal allegations and other legal issues. Here’s how they do it.
Employee Records: Which Ones to Save and for How Long — You don’t want to keep unnecessary employee records. Nor do you want to make a rash decision on whether to destroy records. Here are the laws you need to know.
HR Pros Typically Rescue Managers Who Make 11 Errors— Beware: Many problems are not caused by HR professionals but by managers who don’t use best practices.
16 Best Practices to Stay out of Legal Trouble with Employees — Generally, in human resources, companies find themselves in legal hot water because they inadvertently make mistakes with their employees. It’s important to triple down on preventative measures and responses to legal hazards when necessary.
“If you want to stop illegal immigration, you have to make it so that – so that the people that hire the illegal immigrants will not be in a position to hire them.”
-Jesse Ventura
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