Hiring Foreign Nationals

By way of background, the Immigration & Reform Control Act of 1986 (IRCA) made every employer in the country a deputy of U.S. Immigration and Customs Enforcement. Employers are required under that law to verify the identity and work authorization status of every employee of the business. The mechanism for compliance is the I-9 Employment Verification Form that every worker must complete on the day of hire or earlier. This requirement does not apply to employees hired on or before November 6, 1986.

Within three days of hire, employees must present documentation of identity and work authorization and can present documents from a pre-set list included in the I-9 Form’s instructions. Some documents, like a U.S. passport or a permanent residency card, can prove both identity and that one is legal to work. Some documents, like a driver’s license, prove identity only, while other documents, like a social security card (other than a card stating it is not valid for employment), prove work eligibility. Employers are not allowed to tell employees which documents from the pre-set list they must present.

In 1986 the Immigration & Reform Control Act made every employer in the country a deputy of U.S. Immigration and Customs Enforcement.

An employer must complete the Form I-9 for each individual hired to perform labor or services in the United States in return for wages or other remuneration. Remuneration is anything of value given in exchange for labor or services, including food and lodging. The I-9 requirement does not apply to employees hired on or before November 6, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times.

The proper retention of I-9s is a key requirement for employers to abide by. Employers must keep I-9 Forms for all current employees. For terminated employees, the form must be retained for at least three years from the date of hire or for at least one year after the termination date, whichever comes later.

An employer must also re-verify all employees who are in the United States with a defined end date, pursuant to a temporary work visa or an Employment Authorization Document (EAD). For these employees, the employer must note the expiration of their documents on the I-9 Form and then must pull their I-9 Form before the expiration date and re-verify that the worker’s status has been extended. Employers need to establish a reliable tickler system to prompt re-verification. Aside from complying with the re-verification rule, this system will also ensure that an employer that needs to extend a work visa for an employee will not forget to take care of this critical task.

An employer’s failure to comply with IRCA’s I-9 rules can result in significant fines, loss of access to government contracts and highly negative publicity for a company. It is therefore critical for each and every employer to comply with IRCA’s I-9 rules.