Immigration and employment

January 16th, 2021
Brian Fullmer, Daniel Marks, David A. Selden, Demetra Makris, Heidi Nunn-Gilman, Julie A. Pace, Rick Mahrle, Timothy Forsman
Gammage & Burnham

Immigration regulations and employment

Probably the most prevalent of the laws regarding immigration, the Immigration Reform and Control Act (IRCA), as amended by the Immigration Act, regulates employers by:

  • imposing restrictions prohibiting employers from knowingly hiring or continuing to employ individuals without proper authorization to work in the United States or using a contract to obtain the labor of a worker that the employer knows is not authorized to work in the United States
  • penalizing employers for failing to verify employment authorization for all employees (i.e., fully complete the Form I-9 at the time of hire)
  • prohibiting discrimination on the basis of national origin or citizenship status. 

Each of these restrictions is discussed in more detail herein to help employers ensure that they are in compliance with the employment eligibility verification and nondiscrimination requirements of the IRCA.

Hiring unauthorized workers

Under the IRCA, it is illegal for employers to hire or continue to employ individuals knowing that the individual is not authorized to work in the United States. An employer may violate this section even if it did not have actual knowledge that the individual was not authorized to work in the United States. Constructive knowledge can be established if the employer had information that would lead an employer, through the exercise of reasonable care, to find out that the person was unauthorized. It is important to note, however, that knowledge cannot be inferred from the person’s foreign appearance or accent. Good faith compliance with the verification requirements is a defense to a charge of hiring an unauthorized alien. 

Foreign nationals

Foreign nationals must apply for and receive authorization to work and live in the United States. There are several temporary work authorization programs, including a variety of visas. Additionally, foreign nationals may receive permanent resident status. Without work authorization from the federal government, an individual may not work in the United States. If an employer knowingly hires an individual without work authorization, the employer may be liable for violations of the IRCA or criminal laws.

Verifying and documenting employment authorization

The law requires employers to complete a Form I-9 for all employees within three days after the employee begins employment. In completing the Form I-9, the employer verifies both:

  • a worker’s identity
  • a worker's employment authorization.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) created a good faith defense for procedural or technical violations in completing the Form I-9. This provision is sometimes referred to as the “Sonny Bono Amendment,” named after its sponsor, the California Congressman and performer. Employers who commit a technical or procedural violation in completing the I-9 are excused if they make a “good faith attempt” to comply with the I-9 requirements. This defense does not apply if the employer has failed to cure the violation within 10 days after being notified of the failure by U.S. Immigration and Customs Enforcement (ICE) or another enforcement agency or if the employer has engaged in a pattern or practice of violations of the prohibition against knowingly hiring or continuing to employ unauthorized workers.  Additionally, under an ICE guidance document known as the “Virtue Memo,” this good faith defense does not apply if an employer has previously been notified by ICE of technical or procedural errors and makes the same errors on subsequent I-9 forms and ICE identifies the errors in a second or subsequent audit.

A failure to complete the I-9 form correctly and completely may lead to sanctions of a minimum of $234 and a maximum of $2,332 per Form I-9 for the year 2020, even if the employee hired is authorized to work in the United States. Section 1 of the Form I-9 must be completed on the employee’s first day of work. The rest of the form must to be completed within three business days after the start of employment. The I-9 form must be retained for three years after the date of hire or one year after the date of termination, whichever is later. An employer must always have an I-9 on file for every current employee hired after November 6, 1986.  Owners of a company who work at the company also must complete a Form I-9 if they began at the company after November 6, 1986.

Anti-discrimination provision

The IRCA also makes it an unfair immigration related employment practice for a person or business with four or more employees to discriminate against any person on the basis of their national origin or citizenship status (except unauthorized aliens). The IRCA supplements Title VII of the Civil Rights Act of 1964 (Title VII) in prohibiting discrimination on the basis of national origin. Employers may not have “citizen only” hiring policies and generally may not ask applicants if they are U.S. citizens.  Employers generally may not discriminate against an applicant because their work authorization expires in the future.

Enforcement

The U.S. Department of Homeland Security (DHS) Bureau of Immigration and Customs Enforcement (ICE) enforces the employment verification provisions of the IRCA. Enforcement of IRCA began increasing after IIRIRA mandated that significantly more investigators be hired to enforce the immigration laws and that at least half of the investigators be assigned to investigate possible employer sanctions violations. IIRIRA also made significant changes to certain aspects of the employee verification and anti-discrimination provisions.

Enforcement fluctuates depending on the policies and priorities of the White House and DHS. The number of I-9 audits conducted per year increased dramatically under the Obama Administration and continued to grow under the Trump Administration. Enforcement reached its highest level in 2018 based on the number of inspections conducted in a year. Under the Trump Administration in fiscal year (FY) 2018, ICE opened 6,848 worksite investigations and issued 5,981 Notices of Inspection (NOI) of I-9 audits, which was the highest number ever in a one-year period and a significant increase over the 1,360 I-9 audits initiated in FY 2017. ICE made 779 criminal and 1,525 administrative worksite-related arrests in FY 2018. ICE has not yet completed the audits on all of the companies served an (NOI).

The Acting Associate Director of ICE’s Homeland Security Investigations, the branch that conducts worksite enforcement, has stated that the organization intends to increase the number of I-9 audits in an effort to create a culture of compliance among employers. In FY 2019, ICE continued the trend of increasing the number of ICE audits, initiating almost 6,850 worksite investigations. ICE also engaged in several worksite raids, arresting employees believed to be working without proper employment authorization. In the largest of such raids, on August 7, 2019, ICE arrested approximately 680 individuals at five agricultural processing plants in Mississippi. ICE also seized company records as part of an ongoing criminal investigation into the company's hiring processes. In all, ICE made 2,048 administrative arrests, primarily of undocumented workers, which is an increase of almost 500 from FY 2018. Administrative arrests are made for civil violations of immigration law, such as being in the U.S. unlawfully.  In FY 2020, the number of audits decreased, largely due to the impacts of COVID-19.

In addition to the IRCA’s provisions on visas, Form I-9s and anti-discrimination, there are many other government agencies and programs that employers should be aware of relating to immigration compliance, which are discussed in the later chapters of this manual, such as handling ICE audits in Chapter 12: Investigations, and online verification system E-Verify in Chapter 15: E-Verify).

Additionally, this manual provides chapters on “how-to” topics to identify strategies to assist employers in complying with law and avoiding knowingly hiring or retaining undocumented individuals.

State immigration laws

Immigration has traditionally been a subject of federal law. Indeed, the United States Constitution provides in Article 1, Section 8, that “the Congress shall have Power … to establish a uniform Rule of Naturalization …” Beginning in approximately 2009, however, frustrated with the lack of federal immigration reform and consistent federal guidelines in many areas, states and local governments became active on immigration issues by passing a variety of laws addressing various aspects of immigration, including employment eligibility verification practices.  

Between 2009 and 2019, states and local governments passed more than 1,300 laws relating to immigration or to undocumented workers.  Some laws relate to employment verification and require employers to use E-Verify or take other steps at the time of hire to verify an individual’s identify and authorization to work in the United States.  Other laws are related to providing sanctuary policies or prohibiting sanctuary cities, treatment of or benefits for refugees and asylees, education/civics and instate tuition for immigrants.

Enforcement of immigration laws, elimination of illegal immigration and border security (including through such things as a wall between the United States and Mexico) and a tightening of visas and legal immigration were identified as priorities for the Trump Administration.  While proposals for nationwide mandatory E-Verify did not pass and immigration reform was not addressed by Congress during the Trump Administration, the Trump Administration issued several regulations or interpretive guidance documents that changed or limited various visa programs and changed the asylum process in the United States.

The Biden Administration has announced that it will reverse many of the Trump actions relating to visas and foreign workers.  It is likely that within the next year, there will be a proposal for providing legal status to “dreamers” (individuals who were brought to the U.S. as children, currently under DACA) and other immigration reform.