Immigration Reform and Control Act (IRCA)
The Immigration Reform and Control Act (IRCA) is a federal law that regulates the employment of foreign workers. It designates which workers it is legal to hire and tells employers how to verify the legality of workers. It also prohibits discrimination against job applicants and employees based on national origin or citizenship.
Under IRCA, companies with as few as four employees may not discriminate on the basis of national origin and citizenship (which is different from national origin). This adds criminal penalties to Title VII of the Civil Rights Act of 1964’s prohibition against national origin discrimination.
The IRCA imposes several basic restrictions on the employment of foreign workers including making it illegal for any employers to knowingly hire or employee foreign workers who aren’t authorized to work in the U.S. and requiring that employers verify – using I-9 forms – that every new employee is authorized to work in the U.S.
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including immigration
More recently, a new elective E-Verify system has been devised to allow employers to check that an employee’s name, social security number, and birth date match public records. E-Verify however, can’t be used as a prescreening test or on employees who are already employed with the company. In the event that some portion of an employee’s information doesn’t match, notification is given to the employer and then must immediately be given to the employee. Contested no-match letters from E-Verify must be appealed to the appropriate government entity within eight days.
In general, I-9 forms on your employees must always be made available for inspection to any visitor from the Immigration and Naturalization Service, the Department of Labor (DOL) , or the Office of the Special Counsel for Immigration Related Unfair Employment Practices.
On the upside, any such visitor must make you aware of their intentions at least three days in advance. The document retention rule for I-9 forms is that they must be kept for three years after the date employment begins for the individual an I-9 pertains to, or one year after the individual’s employment is terminated, whichever is later.