The Immigration Reform and Control Act of 1986

By JAY HEDGES, Director
Illinois Department of Commerce and Community Affairs

The Immigration Reform and Control Act of 1986 (IRCA) was signed by President Reagan on November 6, 1986. This new federal law contains several far reaching implications for you as an employer — public and private alike. To assist you in understanding your responsibilities under IRCA, the following information is provided — based on tentative — not final — federal regulations.

IRCA places an affirmative duty on all employers (which includes all governmental entities which hire personnel) to verify the true identity of a job applicant and the applicant's authority to work in the United States.

Employers must complete Form I-9's for only people that are actually hired — a person is hired when he or she begins to work for you. Accurate verification records must be maintained in order to assure compliance with the new law. While United States citizens are automatically eligible for employment, they, too, must provide the required documents and complete an I-9 form.

Employers do not need to fill out an I-9 form for: • persons hired on or before November 8, 1986 ("grandfather" employees); • persons who left employment prior to June 1, 1987; • persons recruited or referred for a fee before June 1, 1987; • persons employed for domestic work in a private home on an intermittent or sporadic basis; • independent contractors; or • persons who are self-employed.

A new Immigration and Naturalization Service (INS) form I-9 has been drafted and will be available to all employers for use in conjunction with verifying new employees. This form is to be completed and signed by both the employer and the new employee. Forms can be obtained by writing to the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402, telephone number (202) 738-3238. Once the I-9 form is finalized, it can be duplicated for use.

The proposed rules provide that section 1 of this form be completed by the new employee at the time of hiring. That section calls for biographical information and requires the individual to attest under penalty of perjury that he or she is a United States citizen or an alien authorized to work in the United States. In addition, the individual is required to present certain documentation to establish identity and work authorization.

Employers are required to complete section 2 of form I-9 within three business days of hiring an individual, except when the duration of employment will be less than three days. In that case, the employer must complete form I-9 before the end of the employee's first working day.

The employer is required to examine documents presented to him and to ascertain that such documents reasonably appear on their face to be genuine and that they prove both identity and work eligibility; and the employer must attest that he has done so. The documents examined must be noted on the form. The employer is permitted, but not required, to make and keep photocopies of each document examined.

The completed form I-9 must be retained by the employer for three years after the date of hire or one year after the date of employment termination, whichever is later. Upon request by the INS or the Federal Department of Labor, the completed form I-9 must be produced for inspection. The proposed rules specifically provide that in such circumstances, a subpoena, warrant or advance notice is not necessary. However, the employer will have up to three business days in which to comply with the request. If he does not do so within that time, he will be deemed to be in violation of the retention requirement.

If an employer violates the new immigration law, INS may take action. During the first year of implementation (June 1, 1987-May 31, 1988), INS will issue a warning citation for first violations. Further violations

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may result in the penalties described below. After May 31, 1988, INS will no longer issue warning citations, and first violations may result in penalties.

Employers who fail to properly complete, retain, and present for inspection the form I-9 as required by law may face civil fines of not less than $100 and not more than $1,000 for each employee for whom the form was not completed or retained. Employers found to have required a bond or indemnity from an individual against liability under the new law may be fined $1,000.

Employers determined to have knowingly hired unauthorized workers may be fined as follows:

• First Violation. Not less than $250 and not more than $2,000 for each unauthorized worker. • Second Violation. Not less than $2,000 and not more than $5,000 for each unauthorized worker. • Subsequent Violations. Not less than $3,000 and not more than $10,000 for each unauthorized worker.

Engaging in a pattern or practice of knowingly hiring, recruiting, or referring unauthorized workers for a fee could subject employers to additional fines of up to $3,000 per worker and/or 6 months imprisonment. Criminal sanctions will be reserved for serious or repeated violations.

The Act specifically prohibits discrimination on the basis of "foreign" appearance, name or language. An employer could be fined up to $1,000 (up to $2,000 for each repeat offense) for the discharge or refusal to hire an individual for these reasons. Further, back pay and attorney's fees could also be awarded upon a court finding of unlawful discrimination.

The new law does not apply to current employees if they were hired on or before November 6, 1986. These employees are called "grandfather" employees, and employers do not have to verify their status or complete I-9 forms for them. No employer sanctions and/or penalties can be imposed against the employer for retaining an illegal alien in his or her work force if that person was hired on or before November 6, 1986.

For additional information on IRCA, call the Federal Information Hotline at 1-800-777-7700 or the Department of Commerce and Community Affairs' Local Government Hotline at 1-800-562-4688. You may also write to:

Immigration and Naturalization Service 219 S. Dearborn Street Chicago, Illinois 60604 Illinois Department of Commerce and Community Affairs 620 E. Adams, 5th Floor Springfield, Illinois 62701 •

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