The employer sanctions provisions of the Immigration Reform and Control Act of 1986 (IRCA) prohibit employers from hiring, recruiting, or referring for a fee aliens known to be unauthorized to work in the United States. Violators of the law are subject to a series of civil fines for violations, or criminal penalties when there is a pattern or practice of violations.
Under IRCA, there are two types of violations:
Record Keeping Violations
Employers are required to document the employment eligibility status of each employee hired, recruited or referred for a fee after November 6, 1986. This is done by executing USCIS Form I-9, which must be completed both by the employee and the employer, under penalty of perjury. Failure to complete the I-9 properly and failure to retain the form for the specified period can result in fines for each record keeping violation.
Hiring Unauthorized Workers
Employers (and their employees or agents) may also be fined for "knowingly" hiring, recruiting or referring for a fee "unauthorized aliens." "Knowingly" has been interpreted to include "constructive knowledge," which means that a violation can be "knowing" if a reasonable, average employer should have been on notice that the employee lacked proper eligibility to engage in employment in the U.S. "Constructive notice" can occur when an employee fails to submit the appropriate documents, present obviously fraudulent documents, or when the employer had other information from which a reasonable person could conclude the worker was not authorized. An unauthorized alien includes aliens who are not lawfully present in the U.S. as well as any alien legally in the U.S. who is not authorized to work by USCIS or another U.S. Department of Homeland Security (DHS) component. As with record keeping violations, the employer may be fined for every unauthorized alien hired after November 6, 1986. It is also important to note that an employer can also be held criminally liable for having a "pattern or practice of knowingly hiring unauthorized aliens."
IRCA violations are typically investigated and enforced by the U.S. Immigration and Customs Enforcement (ICE) component of DHS. ICE investigations are initiated as a result of:
- Random or targeted industry audits;
- Tips from workers, competitors, and others;
- Referrals from other government agencies, such as the U.S. Department of Labor's (DOL) components (Wage and Hour Division, Office of Foreign Labor Certification, Occupational Safety and Health Administration), USCIS, the Internal Revenue Service (IRS), or other agencies that discover inconsistencies or problems in the course of their normal activities.
In practice, ICE follows up on tips and referrals, and regularly examines the activities of companies and industries that are thought to be chronic violators of the IRCA laws. Moreover, given the perception that illegal immigration can be reduced by active enforcement targeted at the employers of unauthorized workers, ICE has indicated its intention to increase efforts to identify and prosecute employers who violate IRCA's provisions. This will result in more investigations, fines, and penalties for employers, along with increased removal actions (deportation) of unauthorized aliens. Moving forward, ICE is expected to substantially increase its enforcement activities nationwide, and it is working closely with DOL and other law enforcement agencies to bring large, high profile criminal actions against employers who have multiple problems, which can include immigration violations, labor law violations, document fraud, alien smuggling, and other offenses.
Goel & Anderson's I-9 services can assist employers in their efforts to train human resources departments and staff on best practices as they relate to the record keeping, hiring, and anti-discrimination provisions in immigration law. We are also a trusted resource for employers facing ICE investigations and audits involving employment eligibility verification, worksite enforcement or raids, other alleged violations of U.S. immigration law. The key point to remember is that IRCA compliance is a serious issue that demands serious attention to avoid the possibility of crippling employer sanctions or even criminal liability.