Federal Immigration Compliance for Employers

The modern era of workplace immigration compliance in the U.S.A. began in 1986 when Congress passed the Immigration Reform and Control Act (“IRCA”). With the passage of IRCA employers became responsible to verify the employment eligibility for their employees hired after November 6, 1986. This requirement was implemented through the completion of the i-9 employment eligibility verification form.

Complete I-9 Accurately and on Time

Correct and timely completion of the i 9 employment form is absolutely central to the compliance process. Employees must complete their section of the i-9 employment form (which is section 1) by their 1st day on the job, while employers have up to the 3rd day.

As part of the process to complete the I-9 employment eligibility verification, the employee must provide certain documents to verify their identity, and also to show that they are authorized to work in the US. The employee gets to pick what documents to present to the employer to establish this, with an important limitation, in that the employee must choose a document(s) from the list of acceptable documents for such purposes. This list of acceptable documents can be conveniently found on the backside of the I-9 form itself. The employer should without interference allow the employee to select the documents, and should not demand to see any particular documents. Employers should not use the I 9 verification as a method for pre-screening job applicants or candidates. No one should be asked to complete the i 9 employment verification form until after they are hired.

IRCA Controversy and Debate

Although IRCA has been law for over 20 years it continues to be a source of attention and controversy. Government enforcement efforts have historically been criticized as ineffectual and too soft on employers. In recent years the federal government has struggled to create a stronger deterrent to the employment of unauthorized workers. In 2003 some big events occurred in the world of immigration law which have changed the culture of immigration compliance. The Immigration and Naturalization Service, which for decades had been the government’s enforcement and processing arm for immigration, was completely abolished. The agency had long been held in low esteem and confidence reached an all time low in the wake of security failures surrounding the 9/11 terrorists attacks. It was replaced by several new government agencies, including the United States Citizenship and Immigration Service (USCIS) and Immigration and Customs Enforcement (ICE). USCIS is now the processing arm for immigration in the U.S., while as the name suggests, ICE is the enforcement branch. ICE has set out to create a better deterrent than the old INS was ever able to, and in April 2006 ICE began a new workplace enforcement initiative to target employers which use unauthorized labor. This new initiative represented a shift in emphasis away from mainly focusing on the education of employers, and more towards an emphasis on enforcement actions against employers and the assessment of both civil and criminal fines and charges.

Next Page: I-9 Audits

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