Excerpt from Chapter 5 of Employment Law for Staffing Professionals
Immigration Reform and Control Act
Until the mid-1980s, employers could employ illegal or "unauthorized" aliens without legal consequence. Many observers believed that the availability of work for aliens encouraged the influx of illegal aliens into the U.S. Meanwhile, unemployment among U.S. citizens remained high.
Congress responded by enacting the Immigration Reform and Control Act of 1986, which was signed into law on Nov. 7, 1986. IRCA represents the most significant change in U.S. immigration policy in decades. Under IRCA, employers are prohibited from hiring anyone who is not authorized to work in the United States. IRCA also prohibits employers from refusing to hire or discharging anyone who is authorized to work based on national origin or, with respect to citizens or intending citizens, citizenship status. In early 2003, in conjunction with the creation of the U.S. Department of Homeland Security, the administration and enforcement of IRCA were transferred from the former Immigration and Naturalization Service to the newly created U.S. Citizenship and Immigration Services.
In order for employers to determine who is authorized to work in the United States, without engaging in unlawful discriminatory practices, IRCA mandates employers to examine certain documents from employees and complete a form created specifically for complying with IRCA, called the Form I-9. ASA Tip 49
These procedures impose additional burdens on employers, and some employers may be tempted to ignore IRCA. However, there may be substantial penalties for violations. Therefore, it would be unwise for staffing companies not to comply with IRCA.
This chapter explains the key provisions of IRCA, with an emphasis on those provisions that are especially relevant to staffing firms. ASA Tip 50
B. Employers Must Verify That Employees Are Authorized To Work
In order to determine whether an employee is authorized to work, staffing firms must follow verification procedures specified by IRCA for all employees hired after Nov. 6, 1986, including U.S. citizens and nationals. IRCA applies to both employees hired for temporary assignments and those hired for regular positions with the staffing firm itself.
1. Verification Procedures
a. Examine Documents
Employees hired after Nov. 6, 1986, must present acceptable documentation of identity and work authorization (otherwise referred to as employment eligibility).
There are three categories of acceptable documentation: List A documents, List B documents, and List C documents.
According to the USCIS, the following documents are no longer acceptable to prove identity and work authorization even though they are listed on the 11/91 version of the Form I-9: Certificate of United States Citizenship, Certificate of Naturalization, Unexpired Re-Entry Permit (Form I-327), and Unexpired Refugee Travel Document (Form I-571). (See the USCIS's Web site.) However, the USCIS has noted that, although not listed on the Form I-9, the Employment Authorization Document (Form I-766) is an acceptable List A document.
The INS announced its new document policy in 1997 (See 62 F.R. 51001) because it found that the documents in question were susceptible to counterfeiting. At the time, the INS said that employers could continue to use the old documents without penalty until a new I-9 form containing the new document rules was published. Although that has not occurred, the instructions on the USCIS Web site indicate that the government is encouraging employers to use the new document list. Therefore, staffing firms that are not already using the new list should consider whether to modify their procedures. Staffing firms should consult with their own legal counsel if they have questions.
i. List A. Documents that provide proof of both identity and work authorization:
1. U.S. passport
2. Unexpired foreign passport that contains an unexpired stamp therein that reads, "processed for I-551" or has attached thereto a Form I-94 bearing the same name as the passport and containing an employment authorization stamp, so long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the Form I-94
3. Resident Alien Form, USCIS Form I-551, provided it contains a photograph of the bearer ASA Tip 51
4. Unexpired Temporary Resident Card (USCIS Form I-688)
5. Unexpired Employment Authorization Card (USCIS Form I-688A)
6. Unexpired Employment Authorization Document issued by the USCIS that contains a photograph (USCIS Form I-688B) (although not listed on the Form I-9, the Employment Authorization Document [USCIS Form I-766] also is an acceptable document)
ASA Tip 49
From time to time, the USCIS will change the documents that are acceptable to comply with the Form I-9. Staffing firms should monitor the issuance of any new rules and a revised Form I-9.
The USCIS continues to publish a "Handbook for Employers" that describes IRCA's requirements, the Form I-9, and compliance procedures. Copies of the handbook can be obtained from the Office of Business Liaison (See Appendix A) or on the Web site maintained by the USCIS.
Effective March 20, 1996, USCIS Form I-551 replaced the I-151 ("green card") documentation for permanent residence in the U.S. Form I-551 will be acceptable for purposes of employment identification and eligibility, in addition to establishing an alien's lawful permanent residence. Individuals must apply to the USCIS for Form I-551. Staffing firms can accept a receipt of the pending application as evidence of lawful residence, and the appropriate receipt may generally be used for I-9 verification purposes.
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