The Immigration Reform and Control Act of 1986, and the Immigration Act of 1990, known collectively as IRCA, impose important obligations of which employers must be aware. Under IRCA, employers must maintain a file copy of a properly completed Employment Eligibility Verification form (I-9) for all employees, including foreign nationals authorized to work in the United States, and must verify that the I-9 documents have been reviewed by the hiring personnel, and that they reasonably appear to be genuine. Pictures of acceptable documents can be found in the Handbook for Employers, published by INS (now USCIS).

Typically, the I-9 must be completed no later than 3 days following the first day of work. The form consists of Section 1, “Employee Information,” which must be completed, signed and dated by the employee at the time of hiring; Section 2, “Employer Review and Verification,” which the employer completes after examining documents the employee provides to establish identity and employment eligibility; and Section 3, “Update and Re-verification,” which the employer completes if the employee has changed names, upon certain re-hire conditions, and on or before expiration of the employee’s work authorization status. The employer is not required to retain the documents its employee submits to complete the I-9 form.

Employers must also be sensitive to the federal employment antidiscrimination provisions. To avoid even the appearance of discrimination, employers should request I-9 documentation only after making a job offer. Employers should not demand more documents, or specify which documents the employee needs to present (such as a green card); question the employee about reasonably genuine documents; select employees randomly for resubmission of documents; or make employment decisions on the basis of the future expiration date of a work authorization.

Enforcement
The government uses two methods to enforce IRCA. One is the issuance by the Social Security Administration of a “mis-match letter” which identifies errors and inconsistencies in a W-2 form and asks the employer to re-file a corrected W-2. Employers who receive this letter should immediately recommend that the employee contact the SSA to correct any errors; review the employee’s I-9 form to ensure the information in it matches that set forth in the employee’s W-2; and confirm that the employee file contains a properly completed W-4 form.

Under the other enforcement method, an on-site investigation and survey, or a raid, is conducted by Immigration and Customs Enforcement (ICE), an agency which was created after 9/11 by combining the law enforcement arms of the former INS and the former U.S. Customs Service. Usually, an employer will receive a Notice of Investigation three days prior to an ICE review of the company’s I-9 forms. The employer is not required to do anything in preparation for the ICE’s initial visit, although a prudent employer will copy its forms to ensure none are lost. The ICE will take the original I-9 forms, and thereafter send the employer a chart of workers who may possess counterfeit documents. These employees should not be terminated; rather, they should be placed on leave or suspension from work until they have completed a new I-9. Employees who fail to complete the form may be discharged.

Employers should develop a standard policy of procedures and processes for responding to ICE visits. The designated employer representative should ask the investigator for official identification, inquire about the purpose for the visit, assess the validity and scope of any warrant, and make a copy of the warrant and - if necessary - send it to counsel. In the absence of the designated representative, other employees should never provide information about specific individuals, but instead refer the investigator to someone with authority to do so. It is important not to argue, resist, interfere, or get in the way of an arrest or a search when a valid warrant exists. When in hot pursuit of a suspect, the ICE can enter the company’s premises without a warrant, and, if probable cause exists, conduct a search for undocumented workers.

Heavy civil and criminal penalties may be assessed against employers who knowingly use, possess, obtain, accept or receive forged, counterfeit, altered or falsely made documents; knowingly hire, continue to employ, or refer for a fee

an alien who does not have a work authorization; or, fail to follow specified verification procedures. To avoid these sanctions, employers should implement these measures:

Centralize the I-9 completion process under trained administrative, supervisory or human resources personnel who understand IRCA and how the I-9 form must be completed.
Periodically conduct a pre-audit (either internally or by engaging an outside auditor) to determine if all I-9 forms have been completed correctly, and to cure any deficiencies in the paperwork.
Ensure that employees are notified well in advance of when their residency cards, employment authorization, or other date-sensitive documents are due for renewal.
Archive current and old I-9 forms alphabetically, apart from employee personnel files. The shorter the employment period, the longer a company is required to keep an employee’s I-9 form – three years if the employment period was less than one year, two years if the employee worked less than two years, and one year if employment lasted three or more years.

In conclusion, employers are well served to practice the following mantra: know and follow the law, apply internal I-9 policies universally, and at the first sign of a red flag, consult with legal counsel.