You are here.
Immigration Reform and Control Act of 1986
Who must comply?
Employers of one or more employees are subject to this act. It prohibits employers from hiring illegal aliens for employment in the United States. An employer who hires, recruits, or refers for a fee someone known to be an illegal alien violates the act. In addition, an employer who fails to comply with the employment-verification provisions violates this act.
This law makes employers responsible for verifying an employee's identity and eligibility to work in the United States. An employer's failure to do this is a violation of the act, even if the employee hired is not an illegal alien. An employer who can establish that he or she complied in good faith with the requirement to verify an employee's identity and eligibility to work in the United States has an affirmative defense to claims that the employer knowingly hired an illegal alien to work in the United States.
What are employers required to do?
An employer subject to the act must do six things:
- Obtain a copy of the individual's Social Security number, if the individual has been issued a Social Security number, or an authorization number established by the Immigration and Naturalization Service.
- Have employees complete part 1 of the employment eligibility verification form, known as form I-9.
- Check documents, submitted by the employee, that establish the employee's identity and eligibility to work in the United States. Employees state their citizenship status in these documents. Identification accepted: United States passport, Resident Alien Card, or other documentation authorized by the Attorney General.
- Complete the employer's portion of form I-9.
- Retain the completed form for at least 3 years or 1 year more than the employee's period of employment, whichever is longer.
- Present the filed form I-9 to an officer of the Department of Labor or the Immigration and Naturalization Service (INS) who is making an inspection.
Employers must complete form I-9 within 3 business days of the date of hire. Date of hire should be considered as the date an employee actually starts to work. If an employee is hired for less than 3 days, the I-9 is to be completed at the time of hire.
If an employer rehires an employee for whom an I-9 was completed within 3 years of the date of rehire, the employer can reverify the information on the first I-9 to determine if the employee is still eligible to work in the United States. After the information is verified, the employer must update the I-9 to reflect the date of rehire. If the employer's inspection of the I-9 determines that the individual's employment authorization has expired, the employer must reverify the employee's eligibility to work in the United States. If the employee cannot establish eligibility, the employee cannot be hired.
Antidiscrimination
The act has very specific antidiscrimination provisions. These prohibit employers from discriminating against any employee when hiring, firing, recruiting, or referring because of the employee's national origin, citizenship, or intended citizenship status. In this context, discrimination means that an employer treats some potential employees differently than others are treated for reasons that are prohibited by law. For example, it would be discriminatory for an employer to refuse to consider a job applicant because the applicant is a foreign citizen. It would not be discrimination, however, to refuse employment to an applicant who is not authorized to work in the United States. This is what the act requires employers to do. These prohibitions are in addition to all other federal laws that deal with discrimination on the basis of sex, race, religion, and age. Note: This section does not apply to persons who employ three or fewer employees.