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Immigration Reform and Control Act of 1986 and Employers


Question: Immigration Reform and Control Act of 1986 and Employers

The Immigration Reform and Control Act (IRCA) of 1986 was passed as an update to previous U.S. immigration law. The main provisions of the IRCA that relate to employment:

  1. The law requires employers to confirm the eligibility of new hires to work legally in the U.S.. Employees hired before December 1, 1988 are not required to be verified. Some state employment agencies screen applicants and certify those who are referred to employers in their state.
  2. The law also makes it illegal to knowingly hire ineligible workers. An employer who knowingly hires aliens not authorized to work in the U.S. is subject to a fine of up to $10,000 for each unauthorized alien. An employer who shows a "pattern of hiring unauthorized aliens" risks prison time.
  3. The law also prohibits employers from discriminating against individuals, other than unauthorized aliens, with respect to hiring or recruitment because of the individual's national origin or citizenship status.

How Work Eligibility is Documented
Form I-9 is used to document employee eligibility to work in the U.S. The employee attests to his or her status and provides documents for the employer to examine. Both the employee and the employer must sign the I-9 form; the employer keeps a copy of the signed form in case of an Immigration and Customs Enforcement (ICE) inspection. Employers may use the E-Verify system, in which information from the I-9 is used to search federal databases. E-Verify then provides the employer with a verification of employment eligibility or ineligibility. Some states require all employers to use the E-Verify system.

Acceptable Documents
Documents acceptable to the INS for employment eligibility verification purposes:

  • Documents with establish both identity and eligibility - List A documents. These documents include a U.S. passport and a Permanent Resident Card. One List A document is sufficient for verification.
  • Documents acceptable for identity purposes - List B documents. Acceptable identity documents include a driver's license with photo, a school identification with a photo, or a voter registration card.
  • Documents acceptable to establish eligibility - List C documents. Acceptable eligibility documents include a social security card (not a card which is laminated or which has "not valid for employment purposes" printed on it), an original or certified copy of a birth certificate from a U.S. state, county, municipal authority or possession, or a Native American tribal document.
To establish identity and work eligibility, one document from both List B and List C must be presented. Here is a list of acceptable documents, or you can see a list of acceptable document, including images, in the Department of Homeland Security (DHS) publication Handbook for Employers.

Employees Hired Before November 6, 1986
Employees who were hired before November 6, 1986, who have continued employment with the same company and how have a "reasonable expectation of employment at all times" are exempt from completing Form I-9 and cannot be verified in the E-Verify system.
If an employee takes a job with another company, employment eligibility must be verified by the new company.

Source: U.S. Department of Agriculture(PDF)

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