With immigration continually in the news, it’s important for employers to understand their obligations when it comes to hiring immigrants. In short, employers have the obligation to ensure they’re only hiring individuals who have the legal right to work in the United States—and they must verify this is true by completing an I-9 form (Employment Eligibility Verification Form). As part of the I-9 completion, employers must request documentation as noted in the form requirements and inspect the provided identification to confirm eligibility.
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Most employers are aware of these requirements and meet them for every new hire.
But what is behind all of this? It actually all stems from the Immigration Reform and Control Act of 1986 (IRCA), which covers this requirement, but also has other obligations for employers. Let’s look at it a bit more in depth.
IRCA?
In short, from an employer standpoint, IRCA is a law that covers the legality of employing foreign workers. It explains how a foreign worker is eligible for employment in the United States and how employers can confirm this eligibility. It makes it illegal for a U.S. organization to hire someone it knows to not be authorized to work in the United States. If an employer knowingly hires someone who is not authorized to work in the United States, or hires people without verifying their eligibility, the employer can face civil and criminal penalties, including fines and even imprisonment.
Separately, but just as important, IRCA also makes it illegal to discriminate against individuals based on their national origin or citizenship status. It’s an important distinction—an employer has an obligation to ensure that a new employee is eligible to work in the United States, but the employer cannot discriminate on the basis of other protected factors. This is critical because some employers may be tempted to illegally discriminate under the guise of ensuring they never hire someone who is ineligible. Even if the discrimination is not intentional, it still happens. (Title VII of the Civil Rights Act also prohibits discrimination based on national origin, but IRCA goes a step further by adding criminal penalties for this action.)
In practical terms, this means it is illegal to refuse to hire an otherwise qualified individual based solely on national origin; policies requiring U.S. citizenship for hiring are generally illegal (exceptions apply). It’s also illegal to refuse to accept any of the listed I-9 documents or to require more documentation than the form stipulates.
Additionally, IRCA has an antiretaliation provision in which an employer cannot take retaliatory action against an individual who has made a claim of discrimination.
That said, the over-arching goal of IRCA is to reduce illegal immigration. What we’ve just outlined accomplishes this goal by making it more difficult for an illegal immigrant to find employment.
As a side note, IRCA also had provisions that allowed certain groups of formerly illegal immigrants to apply for and obtain legal immigrant status. This indirectly affected employers due to an increased employment pool in areas that had a high concentration of formerly illegal immigrants who could now openly apply for jobs.
*This article does not constitute legal advice. Always consult legal counsel with specific questions.
About Bridget Miller:
Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.