Why Employers Must Verify Employment Eligibilityof New Employees
In 1986, Congress reformed U.S. immigration laws. Thesereforms, the result of a bipartisan effort, preserved thetradition of legal immigration while seeking to close the doorto illegal entry. The employer sanctions provisions, found inSection 274A of the Immigration and Nationality Act, wereadded by the Immigration Reform and Control Act of 1986(IRCA). These provisions further changed with the passage of the Immigration Act of 1990 and the Illegal ImmigrationReform and Immigrant Responsibility Act of 1996.References to “the Act” in this Handbook refer to theImmigration and Nationality Act (INA), as amended.Employment is often the magnet that attracts individuals toreside in the United States illegally. The purpose of theemployer sanctions law is to remove this magnet by requiringemployers to hire only individuals who may legally work here:citizens and nationals of the United States, lawful permanentresidents, and aliens authorized to work. To comply with thelaw, you must verify the identity and employment eligibilityof each person you hire, complete and retain a Form I-9 foreach employee, and refrain from discriminating againstindividuals on the basis of national origin or citizenship. (SeePart Four for more information on unlawful discrimination.)The Form I-9 helps employers to verify individuals who areauthorized to work in the United States. You should completea Form I-9 for every new employee you hire after November6, 1986. The law requires you as an employer to:1.
Ensure that your employees fill out Section 1 of the FormI-9 when they start to work;2.
Review document(s) establishing each employee’sidentity and eligibility to work;3.
Properly complete Section 2 of the Form I-9;4.
Retain the Form I-9 for 3 years after the date the personbegins work or 1 year after the person’s employment isterminated, whichever is later; and5.
Upon request, provide Forms I-9 to authorized officers of the Department of Homeland Security (DHS), the U.S.Department of Labor (DOL), or the Office of SpecialCounsel for Immigration Related Unfair EmploymentPractices (OSC) for inspection.
NOTE: This does not preclude DHS or DOL fromobtaining warrants based on probable cause for entryonto the premises of suspected violators without advancenotice.
These requirements apply to all employers, including:1.
Agricultural associations, agricultural employers or farmlabor contractors who employ, recruit or refer people for afee; and2.
Those who employ anyone for domestic work in theirprivate home on a regular basis (such as every week).If you are self-employed, you do not need to complete a FormI-9 on yourself unless you are also an employee of a businessentity, such as a corporation or partnership, in which case thebusiness entity is required to complete a Form I-9 on you.This Handbook will explain how to properly complete theForm I-9, and answer frequently asked questions about the lawas it relates to the Form I-9.
Developments in the Law and Changes to the Form I-9
Congress enacted the Illegal Immigration Reform andImmigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, on September 30, 1996. Section 412(a) of IIRIRAmandated a reduction in the number of documents thatemployers may accept from newly hired employees during theemployment verification process. On September 30, 1997, theformer Immigration and Naturalization Service (INS),published an Interim Designation of Acceptable Documentsfor Employment Verification that implemented the changesrequired by IIRIRA. See 62 FR 51001-51006 (“1997 interimrule”). However, the Form I-9 was not amended at that time toreflect the changes made by the 1997 interim rule. For thisreason, DHS has updated the Form I-9 to bring it intocompliance with the 1997 interim rule. DHS has also updatedthis Handbook for Employers as a companion to the new versionof the Form I-9.In the supplementary information accompanying the 1997interim rule, the INS stated that it would exercise prosecutorialdiscretion not to penalize violations resulting from the changesmade by that interim rule as a temporary transitional measureuntil a new Form I-9 was released in the context of a broaderfinal rulemaking. While DHS still intends to pursue otherchanges to the Form I-9 in a future update, it decided to updatethe Form I-9 to bring it in compliance with existing law beforemaking any further changes. Therefore, the Form I-9 has beenamended to reflect those changes made by the 1997 regulations,but any changes that would have required the drafting of a newregulation are being saved for a future update of the Form I-9.Employers who do not comply with the current regulatoryrequirements as indicated on the new Form I-9, for example, byaccepting documents no longer listed on the Form I-9 List
of Acceptable Documents, may be subject to penalties undersection 274A of the Immigration and Nationality Act.
Form M-274 (Rev.
/2007) N Page3