Employers have certain responsibilities under immigration law during the hiring process. The employer sanctions provisions, found in section 274A of the Immigration and Nationality Act (INA), were added by the Immigration Reform and Control Act of 1986 (IRCA). These provisions further changed with the passage of the Immigration Act of 1990 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996.
- Verify the identity and employment authorization of each person hired after Nov. 6, 1986. For employment in the Commonwealth of the Mariana Islands (CNMI), this verification requirement applies to persons hired after Nov. 27, 2009.
- Complete and retain Form I-9, Employment Eligibility Verification, for each employee who is required to complete the form.
Employers Must Not
- Discriminate against individuals on the basis of national origin, citizenship, or immigration status.
- Request more or different documents than are required to verify employment eligibility, reject reasonably genuine-looking documents, or specify certain documents over others.
- Retaliate against or intimidate individuals because they: file charges with the Department of Justice’s Immigrant and Employee Rights Section (IER); cooperate with an IER investigation; contest action that may constitute unfair documentary practices or discrimination based on citizenship or immigration status, or national origin; or assert their rights under the INA's anti-discrimination provision.
- Hire, recruit for a fee, or refer for a fee unauthorized aliens they know to be unauthorized to work in the U.S.
Employers who violate the law may be subject to:
- Civil fines and/or Criminal penalties (when there is a pattern or practice of violations). For more information on the current amounts please refer to the Civil Monetary Penalties Inflation Adjustment for 2017.
- Debarment from government contracts
- A court order requiring the payment of back pay to the individual discriminated against
- A court order requiring the employer to hire the individual discriminated against
Civil and Criminal Violations for Form I-9 and Immigration-Related Employment Discrimination
- Knowingly hired, or to have knowingly recruited or referred for a fee, an unauthorized alien for employment in the United States or to have knowingly continued to employ an unauthorized alien in the United States
- Failing to comply with Form I-9 employment verification requirements
- Committing or participating in document fraud for satisfying a requirement or benefit of the employment verification process or the INA
- Committing document abuse
- Unlawful discrimination against an employment-authorized individual in hiring, firing, or recruitment or referral for a fee
- Failing to notify DHS of a Final Nonconfirmation (FNC) of an employee’s employment eligibility
- Requiring an individual to post a bond or security or to pay an amount or otherwise to provide financial guarantee or indemnity against any potential liability arising under the employment verification requirements
- Engaging in a pattern or practice of hiring, recruiting or referring for a fee unauthorized aliens