PURPOSE
IRCA (Immigration Reform and Control Act) of 1986 prohibits employers from knowingly hiring, recruiting, or referring for a fee, any alien who is unauthorized to work. The public policy behind this law reflects the concern that the problem of illegal immigration and employment requires greater control and stronger enforcement mechanisms by the federal government. As a result of this law, all employers are required to verify both the identity and employment eligibility of all regular, temporary, casual, and student employees hired after November 6, 1986, and complete and retain a one-page form (I-9) documenting this verification. Failure to comply with these requirements may result in both civil and criminal liability with the imposition of substantial fines ranging from $100.00 to $1,000.00 per hire, as well as possible imprisonment for a pattern or practice of noncompliance. Most importantly, failure to verify a new employee's identity and employment eligibility will result in the termination of employment for that affected employee.

FOR WHO MUST EMPLOYERS COMPLETE FORM I-9?
Every U.S. employer must have a Form I-9 in its files for each new employee, unless:

• the employee was hired before November 7, 1986, and has been continuously employed by the same employer.
• Form I-9 need not be completed for those individuals:
• providing domestic services in a private household that are sporadic, irregular, or intermittent;
• providing services for the employer as an independent contractor (i.e. carry on independent business, contract to do a piece of work according to their own means and methods and are subject to control only as to results for whom the employer does not set work hours or provide necessary tools to do the job, or whom the employer does not have authority to hire and fire); and
• providing services for the employer, under a contract, subcontract, or exchange entered into after November 6, 1986. (In such cases, the contractor is the employer for I-9 purposes; for example, a temporary employment agency.)

SOCIAL SECURITY CARD ISSUES
The Social Security Administration (SSA) currently issues SSA numbers and cards to aliens only if they can present documentation of current employment authorization in the U.S. Aliens such as lawful permanent residents, refugees, and asylees are issued unrestricted SSA cards that are undistinguishable from those issued to U.S. citizens.

Note on restricted SSA and other cards:

SSA “Valid only with INS (or DHS) Authorization” card – issued to aliens who present proof of temporary work authorization; these cards do not satisfy the Form I-9 requirements.

SSA “Not Valid for Employment” card – issued to aliens who have a valid non-work reason for needing a social security number (e.g., federal benefits, State public assistance benefits), but are not authorized to work in the U.S.

Internal Revenue Service (IRS) Individual Taxpayer Identification Numbers (ITINs) – issued to aliens dealing with tax issues (e.g., reporting unearned income such as savings account interest, investment income, royalties, scholarships, etc.). An Individual Taxpayer Identification Number card is NOT employment eligibility verification.

Aliens who satisfy I-9 requirements have been known to present a restricted SSA card for payroll administration purposes (consistent with advice from SSA and IRS). In cases like this, the employer needs to encourage the individual to report the change in status to SSA immediately.

What are the penalties for employing unauthorized foreign workers or for failing to complete Form I-9?

• An employer who knowingly hires unauthorized workers or who continues to employ unauthorized workers may be subject to a cease and desist order with civil money penalties from $250 to $10,000 for each unauthorized worker. There are also criminal penalties for repeat offenders ,with the possibility of a maximum of 6 months’ imprisonment.
• An employer who fails to properly complete and maintain Form I-9s is liable for a civil penalty between $100 and $1000 for each individual.

Form I-9 must be kept by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must be available for inspection by authorized U.S. Government officials (e.g., ICE, Department of Labor).