The 1986 Immigration Reform and Control Act (“IRCA”) makes ALL U.S. employers responsible for verifying, through a specific process, the identity and work authorization or eligibility of all individuals, regardless whether U.S. citizens or not, who were hired after November 6, 1986. IRCA makes it ILLEGAL for an employer to hire, recruit or refer for a fee someone unauthorized to work in the United States. An employer may also violate the law if he knowingly uses or makes use of another employer’s undocumented workers. In some cases the fact that an employer “should have known” the employee was undocumented is enough to trigger liability and penalties.

By law all U.S. employers are responsible for completion and retention of an Employment Eligibility Verification Form issued by the Department of Homeland Security U.S. Citizenship and Immigration Services for all U.S. citizens and non-U.S. citizens employees hired in the U.S. after November 6, 1986. All employers must verify the identity and employment eligibility of every new employee. It is absolutely necessary to insure all requirements are met because the employment of unauthorized workers can make the employer subject to penalties imposed by the government. On the other hand, employers also must be sensitive to the fact that being overzealous can lead to problems if they discriminate against employees on the basis of national origin or citizenship status. All eligible potential employees (U.S. citizens, lawful permanent residents and others who have valid employment authorization documents) must receive an equal opportunity when applying for a position for which they are basically eligible.

“If a company knowingly hires illegal workers it can be penalized up to $10,000.00 per person,” according to Garrison Courtney, a spokesman for the Department of Homeland Security’s Bureau of Immigration and Customs Enforcement. The government takes a broad view as to what constitutes “knowing” which includes not only actual knowledge on the part of the employer, but also knowledge which may be inferred from certain facts and circumstances. Immigration authorities may even infer knowledge that a worker is illegal when an employer fails to complete or improperly completes Form I-9.