Governing eligibility to work in the United States
The 1986 Immigration Reform and Control Act (also known as the Simpson-Mazzoli Act) made it illegal for employers with four or more employees to knowingly hire someone who entered the U.S. without the proper permission to work, or to transport people into the U.S. for the purpose of work without proper permission. Here's what you need to know to remain compliant with the law.
What does the law require of employers?
To remain compliant with the Immigration Reform and Control Act, employers must:
- Confirm that employees are legally able to work in the U.S. This confirmation process requires that employers submit an I-9 form for all new employees, regardless of their citizenship status. New employees must fit into one of four categories of legal workers: U.S. citizen, noncitizen national, lawful permanent resident or alien authorized to work. New employees fill out the first section of the I-9 and identify which category of legal worker they belong to. Employers fill out the second section of the form, as well as inspect and record the information from (and sometimes retain copies of) the employee's identification documents — such as a passport or permanent resident card.
- Avoid discrimination based on perceptions of an employee's immigration status. Employers may not inspect a potential employee's immigration or citizenship documents prior to making a job offer. Such documents can only be requested after an offer of employment has been made. Employers are also prohibited from designating which identification documents a new employee may present from the acceptable documents list.
- Terminate the employment of any employee found to be working in the U.S. illegally. This might happen due to an expired work visa or other circumstances.
Employers are also liable for any undocumented workers employed by subcontractors. If you contract with a service provider and discover that the provider employs undocumented workers, you're obligated to insist that the subcontractor terminate the employment of all undocumented workers — or you must terminate the contract.
If your work involves referring people for employment to other employers, you're also subject to the Immigration Reform and Control Act. In essence, you're prohibited from recommending anyone who lacks permission to work in the U.S.
What's the best way for nonprofits to remain in compliance?
The best way to stay on the right side of Immigration Reform and Control Act is to do your due diligence with all employees. For example:
- Keep paperwork up to date, including an I-9 form for all employees.
- Require new employees to supply the complete and correct forms of identification.
- Determine immigration status only by proper documentation, not a person's appearance or accent.
You can use the Social Security Administration's E-Verify system to confirm that Social Security numbers and visas used by employees are correct and up-to-date. In fact, some states require all employers to use E-Verify (here's a list). Note that E-Verify may present some additional complications in cases when employers are found to have knowledge of an employee's use of false documentation.
What's a "no match" letter?
If the Social Security Administration can't match an employee's Social Security number, you'll receive a "no match" letter. This doesn't automatically mean the employee is using a fraudulent Social Security number, but you're required to follow up on the discrepancy in order to invoke your own "safe harbor" status and be free from prosecution yourself.
If you receive a "no match" letter, consider taking the following steps:
- Look for errors on your part. You have 30 days to determine the "no match" wasn't due to an error on your part, such as a spelling error or mistake with a name change (due to marriage or divorce, for example).
- Ask for confirmation from the employee. If the "no match" isn't due to employer error, the employee must confirm that the information he or she provided is accurate.
- Involve the Social Security Administration. The employee has 90 days to resolve the issue with the Social Security Administration.
- Keep your documentation. If the issue is resolved, both you and the employee should retain records of the verification.
- Know when to consider termination of employment. If the employee's status is still in question after 90 days, termination of employment should be considered. If you reach this stage, obtaining legal counsel is highly recommended.
Penalties for noncompliance
Failure to comply with the Immigration Reform and Control Act may have significant consequences for employers. For example, failure to properly complete and retain an I-9 form may carry a fine of up to $1,000. Hiring workers without legal work authorization may increase fines to $5,500 per worker. In cases of discrimination, the government may issue a court order requiring an employer to hire the employee or provide the employee back pay.
Of particular concern to nonprofits: violation of the Immigration Reform and Control Act may mean the loss of government contracts or grants — and ineligibility to receive them in the future.
This article draws on the expertise of Grace Davies, a Minneapolis-based attorney with special interest in product liability, medical malpractice and employment discrimination.
Equal Employment Opportunity Commission: Immigration Reform and Control Act
Blue Avocado: Ask Rita: Facing an immigration quandary by Ellen Aldridge (2008)
U.S. Citizenship and Immigration Services: Instructions for employment eligibility verification (2013)
National Conference of State Legislatures: E-Verify (2012)
U.S. Department of Justice: Frequently asked questions about name/Social Security number "no-matches"
Littler: DHS publishes final "safe-harbor" procedures for employers who receive SSA "no-match" letters and DHS notices by Jorge Lopez and GJ Stillson MacDonnell (2007)
U.S. Citizenship and Immigration Services: Acceptable documents
U.S. Citizenship and Immigration Services: Penalties
Patriot Software: What is the Immigration Reform and Control Act (IRCA)? by Mike Kappel (2016)
American Immigration Lawyers Association: Worksite enforcement and E-Verify (2015)